The Cyprus Issue: A Documentary History, 1878–2007 9780755622252, 9781845113926

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ACRONYMS AND ABBREVIATIONS _________________________________________________________

CAP CBC CBE CBS CMP COPS CSCE CSF CYP Cypfruvex EAEC EAGGF EC ECHR ECSC EEA EEC EFSA EFTA ELDR EMS Enosis EOKA EOKA B EU Euratom Evkaf FAO

Common Agricultural Policy Cyprus Broadcasting Corporation Commander (of the Order) of the British Empire Columbia Broadcasting System Committee on Missing Persons Conflict Prevention Service Conference on Security and Cooperation in Europe Compagnie Générale de Télégraphie Sans Fil (part of Thomson-CSF) Cyprus pounds Cyprus Fruit and Vegetable Enterprises Ltd European Atomic Energy Community European Agriculture Guidance and Guarantee Fund European Commission European Convention on Human Rights European Coal and Steel Community European Economic Area European Economic Community European Food Safety Authority European Free Trade Association European Liberal Democrat and Reform Party European Monetary System Cypriot union with Greece Ethniki Organosis Kyprion Agoniston (National Organisation of Cypriot Fighters) Greek Cypriot right-wing pro-enosis paramilitary organisation European Union European Atomic Energy Community Board of Pious Foundations Food and Agriculture Organization (of the United Nations) ix

Acronyms and Abbreviations GATT ICAO ICRC LCB IGC mfn NATO NPAA OJ QC RAS RC Taksim TMT TOURDYK TRNC UNESCO UNFICYP UNSC UNSG USSR VAT WTO

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General Agreement on Tariffs and Trade International Civil Aviation Organization International Committee of the Red Cross London City Bond Intergovernmental Conference most-favoured nation North Atlantic Treaty Organisation National Programme for the Adoption of the Acquis Official Journal of the European Communities Queen’s Counsel Rapid Alert System Republic of Cyprus Partitioning of the island Türk Mukavemet Teșkilatı Turkish Forces in Cyprus under the Treaty of Guarantee Turkish Republic of Northern Cyprus United Nations Educational, Scientific and Cultural Organization United Nations Peacekeeping Force in Cyprus United Nations Security Council United Nations Secretary-General Union of Soviet Socialist Republics value-added tax World Trade Organization

ABOUT THE EDITOR __________________________________

Murat Metin Hakki lives in Nicosia, North Cyprus. Having completed his primary and secondary education in his home country, he attended the University of Southampton, England where he obtained the Bachelor of Laws (LL.B) degree. While there, he won the Macfarlanes Prize in Contract Law. He subsequently attended the London School of Economics and Political Science, where he was awarded the Master of Laws (LL.M) degree in commercial and corporate law. He also holds a second LL.M degree from Cornell Law School, New York and a Masters of Arts (A.M.) degree in Middle Eastern Studies from Harvard University. He recently completed the Legal Practice Course (LPC) programme at BPP Law School in London and plans to practise as a solicitor. He is the author of numerous articles that have been published in various law journals and in newspapers in Cyprus, Turkey and Greece.

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PREFACE ________________

Being one of the most intractable political disputes of the world, the Cyprus problem has always attracted enormous attention from scholars and politicians around the world. The dispute has its roots in 1878, when the ethnic rivalries began to re-emerge once the Ottomans left and the island became a British colony. The issue is thus one that is extensively written about. Nevertheless, most writers, be they researchers or historians, often find it difficult to have access to the documents that may shed light on certain aspects of the dispute as they are scattered all around and there is no single publication that can provide them with what they need instantly. Those future scholars who gain possession of this publication will have in their hands most of the important documentation or evidence that could answer many of their questions on the political conflict. This book includes more than sixty documents or treaties to serve that purpose. Given that my publication will be in English, it will not only be of interest to Greek and Turkish historians and researchers, but also to those living in the United States or Europe as well. In this way, an important vacuum on the jurisprudence relating to Cyprus will have been filled. My project is in two parts. The first contains the treaties and documents that deal with the international and constitutional legal dimensions of the Cyprus dispute. Given that the island – regardless of the continuation of the current political imbroglio – joined the European Union (EU) on 1 May 2004, many Cypriot lawyers will need access to the crucial documents of a legal and political nature concerning Cyprus–Europe relations over the last two decades. The second part is devoted to those.

Murat Metin HAKKI Harvard University Cambridge, Massachusetts

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CYPRUS UNDER BRITISH RULE __________________________________________________

1. Convention of Defensive Alliance between Great Britain and Turkey, 4 June 1878 Preamble Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, and His Imperial Majesty the Sultan, being mutually animated with the sincere desire of extending and strengthening the relations of friendship happily existing between their two Empires, have resolved upon the conclusion of a Convention of Defensive Alliance with the object of securing for the future the territories in Asia of His Imperial Majesty the Sultan. Their Majesties have accordingly chosen and named as their Plenipotentiaries, that is to say: Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, the Right Honourable Austen Henry Layard, Her Majesty’s Ambassador Extraordinary and Minister Plenipotentiary at the Sublime Porte; And His Imperial Majesty the Sultan, his Excellency Safvet Pasha, Minister for Foreign Affairs of His Imperial Majesty; Who, after having exchanged their full powers, found in due and good form, have agreed upon the following Articles: Engagement of Great Britain to join Turkey in event of Russia retaining Batoum, Ardahan, or Kars, and making any attempt to take further Territories in Asia ART. I. If Batoum, Ardahan, Kars, or any of them shall be retained by Russia, and if any attempt shall be made at any future time by Russia to take possession of any further territories of His Imperial Majesty the Sultan in Asia, as fixed by the Definitive Treaty of Peace, England engages to join His Imperial Majesty the Sultan in defending them by force of arms. Engagement of Sultan, in return, to introduce Reforms in Government, and for Protection of Christian and other Subjects of the Porte, in Asia In return, His Imperial Majesty the Sultan promises to England to introduce

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Part I: Constitutional Issues necessary Reforms, to be agreed upon later between the two Powers, into the government, and for the protection of the Christian and other subjects of the Porte in these territories. Occupation and Administration of Cyprus by Great Britain. And in order to enable England to make necessary provision for executing her engagement, His Imperial Majesty the Sultan further consents to assign the Island of Cyprus to be occupied and administered by England. Ratifications ART. II. The present Convention shall be ratified, and the ratifications thereof shall be exchanged, within the space of one month, or sooner if possible. In witness whereof the respective Plenipotentiaries have signed the same, and have affixed thereto the seal of their arms. Done at Constantinople, the fourth day of June, in the year one thousand eight hundred and seventy-eight. (L. S.) A. H. LAYARD (L. S.) SAFVET

2. Annex to the Anglo–Turkish Convention signed between the two sides, 1 July 1878 The Right Honourable Sir A. H. Layard, GCB, and his Highness Safvet Pasha, now the Grand Vizier of His Majesty the Sultan, have agreed to the following Annex to the Convention signed by them as Plenipotentiaries of their respective Governments on 4 June 1878: Conditions of Occupation and Administration of Cyprus It is understood between the two High Contracting Parties that England agrees to the following conditions relating to her occupation and administration of the Island of Cyprus: Mussulman Religious Tribunal I. That a Mussulman religious Tribunal (Mahkéméi Shéri) shall continue to exist in the island, which will take exclusive cognizance of religious matters, and of no others, concerning the Mussulman population of the island. Superintendence and Administration of Mussulman Schools and other Religious Establishments in Cyprus II. That a Mussulman resident in the island shall be named by the Board of Pious Foundations in Turkey (Evkaf) to superintend, in conjunction with a

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Cyprus under British Rule Delegate to be appointed by the British Authorities, the administration of the property, funds, and lands belonging to mosques, cemeteries, Mussulman schools, and other religious establishments existing in Cyprus. Excess of Revenue over Expenditure to be paid by England to Turkey III. That England will pay to the Porte whatever is the present excess of revenue over expenditure in the island; (this excess to be calculated upon and determined by the average of the last five years, stated to be 22,336 purses, to be duly verified hereafter, and to the exclusion of the produce of State and Crown lands let or sold during that period.) Power reserved to Porte to Sell and Lease Lands and other Property of the Crown and State in Cyprus IV. That the Sublime Porte may freely sell and lease lands and other property in Cyprus belonging to the Ottoman Crown and State (Arazii Miriyé vé Emlaki Houmayoun) the produce of which does not form part of the revenue of the island referred to in Article III. Purchase of Land by English Government V. That the English Government, through their competent authorities, may purchase compulsorily, at a fair price, land required for public improvements, or for other public purposes, and land which is not cultivated. Conditions of Evacuation of Cyprus by Great Britain VI. That if Russia restores to Turkey Kars, and the other conquests made by her in Armenia during the last war, the Island of Cyprus will be evacuated by England, and the Convention of 4 June 1878, will be at an end. Done at Constantinople, the 1 day of July 1878.

3. Unilateral annexation of Cyprus, 5 November 1914 Order in Council by the King WHEREAS, by virtue of the Convention of defensive alliance between Her Majesty Queen Victoria and His Imperial Majesty the Sultan signed on June the fourth, 1878, the Annex to the said Convention signed on July the first, 1878, and the Agreement signed on behalf of Her Majesty and His Imperial Majesty the Sultan on August the fourteenth, 1878, His Imperial Majesty the Sultan assigned the Island of Cyprus to be occupied and administered by England upon the terms and conditions specified in the said Convention, Annex and Agreement:

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Part I: Constitutional Issues And whereas, by reason of the outbreak of war between His Majesty and His Imperial Majesty the Sultan, the said convention, Annex and Agreement have become annulled and are no longer of any force or effect: And whereas it has, for the reasons hereinbefore appearing, seemed expedient to his Majesty that the said Island should be annexed to and should form part of His Majesty’s Dominions, in order that proper provision may be made for the government and protection of the said Island: Now, therefore, His Majesty is pleased by and with the advice of His Privy Council, to order and it is hereby ordered as follows: 1. From and after the date hereof the said Island shall be annexed to and form part of His Majesty’s Dominions and the said Island is annexed accordingly. 2. Nothing in this Order shall affect the validity of any instructions issued by His Majesty under the Royal Sign Manual and Signet to the High Commissioner and Commander-in-Chief of Cyprus, or of any Order in Council affecting Cyprus, or of any law or proclamation passed or issued under any such instructions or order, or of any act or thing done under any such instructions, order, law, or proclamation, save in so far as any provision of any such Order in Council, law, or proclamation may be repugnant to the provisions of any Act of Parliament which may, by reason of the annexation hereby declared, become extended to Cyprus, or to any order or regulation made under the authority of any such act or having in Cyprus the force and effect of any such act. 3. His majesty may from time to time revoke, alter, add to, or amend this Order. 4. This Order may be cited as the Cyprus (Annexation) Order in Council, 1914. And the Right Honourable Lewis Harcourt, one of His Majesty’s Principal Secretaries of State, is to give the necessary directions herein accordingly.

4. Turkey ratifies the unilateral British annexation of Cyprus The Treaty of Peace between the Allied and associated powers and Turkey signed at Sèvres, 10 August 1920 Cyprus, ARTICLE 115 The High Contracting Parties recognise the annexation of Cyprus proclaimed by the British Government on November 5, 1914.

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Cyprus under British Rule ARTICLE 116 Turkey renounces all rights and title over or relating to Cyprus, including the right to the tribute formerly paid by that island to the Sultan. ARTICLE 117 Turkish nationals born or habitually resident in Cyprus will acquire British nationality and lose their Turkish nationality, subject to the conditions laid down in the local law. [Following the Turkish victories during the ‘War of Liberation’ (1919–1922), the Treaty of Sèvres was replaced by the Treaty of Lausanne below] The Convention Respecting the Regime of the Straits and Other Instruments Signed at Lausanne, 24 July 1923 ARTICLE 15 Turkey renounces in favour of Italy all rights and title over the following islands: Stampalia (Astrapalia), Rhodes (Rhodos), Calki (Kharki), Scarpanto, Casos (Casso), Piscopis (Tilos), Misiros (Nisyros), Calimnos (Kalymnos), Leros, Patmos, Lipsos (Lipso), Simi (Symi), and Cos (Kos), which are now occupied by Italy, and the islets dependent thereon, and also over the island of Castellorizzo. ARTICLE 16 Turkey hereby renounces all rights and title whatsoever over or respecting the territories situated outside the frontiers laid down in the present Treaty and the islands other than those over which her sovereignty is recognised by the said Treaty, the future of these territories and islands being settled or to be settled by the parties concerned. The provisions of the present Article do not prejudice any special arrangements arising from neighbourly relations which have been or may be concluded between Turkey and any limitrophe countries. ARTICLE 20 Turkey hereby recognises the annexation of Cyprus proclaimed by the British Government on 5 November 1914. ARTICLE 21 Turkish nationals ordinarily resident in Cyprus on 5 November 1914 will acquire British nationality subject to the conditions laid down in the local law, and will thereupon lose their Turkish nationality. They will, however, have the right to opt for Turkish nationality within two years from the coming into force of the present Treaty, provided that they leave Cyprus within twelve months after having so opted.

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Part I: Constitutional Issues Turkish nationals ordinarily resident in Cyprus on the coming into force of the present Treaty who, at that date, have acquired or are in process of acquiring British nationality in consequence of a request made in accordance with the local law, will also thereupon lose their Turkish nationality. It is understood that the Government of Cyprus will be entitled to refuse British nationality to inhabitants of the island who, being Turkish nationals, had formerly acquired another nationality without the consent of the Turkish Government.

5. Implicit recognition of the colonial peoples’ right to self-determination The Atlantic Charter (14 August 1941) The President of the United States of America and the Prime Minister, Mr Churchill, representing His Majesty’s Government in the United Kingdom, being met together, deem it right to make known certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world. First, their countries seek no aggrandizement, territorial or other; Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned; Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them; Fourth, they will endeavor, with due respect for their existing obligations, to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity; Fifth, they desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement and social security; Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want; Seventh, such a peace should enable all men to traverse the high seas and oceans without hindrance; Eighth, they believe that all the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of

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Cyprus under British Rule their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential. They will likewise aid and encourage all other practicable measures which will lighten for peace-loving peoples the crushing burden of armaments. Franklin D. Roosevelt Winston S. Churchill

6. Demands for independence begin: the Winster Constitutional Proposals of 1948 BRITAIN PROPOSES TO STAY IN CYPRUS By CLIFTON DANIEL Special to THE NEW YORK TIMES New York Times (1857-Current file; May 12, 1948; ProQuest Historical Newspapers The New York Times) 185: pg. 18

BRITAIN PROPOSES TO STAY IN CYPRUS Constitutional Plan Will Ban Legislative Discussion of Union with Greece By CLIFTON DANIEL Special to THE NEW YORK TIMES LONDON, May 11–The British Government put forward today constitutional proposals for Cyprus that plainly indicated Britain’s intention to hold on to the island colony, which was acquired 70 years ago, as a strategic outpost in the eastern Mediterranean. Cyprus lies off shore from Palestine where British political authority is being surrendered at the end of this week. A communication from the Colonial Office to the Consultative Assembly in Cyprus today rejected an application for a fully representative government on the island and offered instead a Constitution

designed to discourage the Colony’s tendency to withdraw from the British Empire and unite with Greece. One of the mandatory provisions of the proposed Constitution would be “that the legislature may not discuss the status of Cyprus within the British Commonwealth.” The communication stipulated “limits beyond which His Majesty’s Government is not prepared to go,” but otherwise offered the “maximum advance in constitutional liberty.” National elections have been suspended in Cyprus since 1931, when there was a short, sharp uprising against British rule. Today’s proposals represented another phase in the post-war effort to restore representative government and placate Cypriot nationalism. Placation Not Easy The first reactions from Cyprus indicated that this placation would not be easy. When Britain first took charge of the

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Part I: Constitutional Issues island the movement for union with Greece was already in existence and lately it has been intensified. At the moment the Right Wing majority is abstaining from the Consultative Assembly, which was called to draft a Constitution, because it was not free to vote for independence or accession to Greece, from which emigrants have gone to Cyprus for 3,000 years. Today’s British communication, signed by the Earl of Listowel, Minister of State for Colonial Affairs, and sent to Lord Winster, Royal Governor of Cyprus, proposed that the island should have a legislature composed of twenty-two

popularly elected members and four senior officers of the British-appointed administration. Of the twenty-two elected members four would represent the Turkish minority in Cyprus, whose leaders have described it as being unanimously opposed to union with Greece. The Constitution would give the Governor power to veto legislation discriminating against minorities, affecting defense or foreign affairs, and amending the Constitution. The Governor would be advised by an Executive Council composed of four senior officials and initially of four members of the legislature.

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(The road to independence) On April 1, 1955, EOKA opened a campaign of violence against British rule in a well-coordinated series of attacks on police, military, and other government installations in Nicosia, Famagusta, Larnaca and Limassol. In Nicosia the radio station was blown up. Grivas circulated his first proclamation as leader of EOKA under his codename Dighenis (a hero of Cypriot mythology), and the four-year revolutionary struggle was launched. According to captured EOKA documents, Cypriot communists were not to be accepted for membership and were enjoined to stand clear of the struggle if they were sincerely interested in enosis. The Turkish Cypriots were described as compatriots in the effort against an alien ruler; they too were simply asked to stand clear, to refrain from opposition and to avoid any alliance with the British. During a difficult summer of attacks and counterattacks, the Tripartite Conference of 1955 was convened in London in August at British invitation; representatives of the Greek and Turkish governments met the British authorities to discuss Cyprus – a radical departure from traditional British policy. Heretofore the British had considered colonial domestic matters internal affairs not to be discussed with foreigners. Greece accepted the invitation with some hesitation, because no Cypriots had been invited, but reluctantly decided to attend. The Turks also accepted. The meeting broke up in September, having accomplished nothing. The Greeks were dissatisfied because Cypriot self-determination (a code word for enosis) was not offered; the Turks because it was not forbidden. A bombing incident at the Turkish consulate in Salonika, Greece, a day before the meeting ended led to serious rioting in Istanbul and izmir. It was later learned that the bombing had been carried out by a Turk, and that the riots had been prearranged by the government of Turkey to bring pressure on the Greeks and to show the world that Turks were keenly interested in Cyprus. The Turkish riots 10

Cyprus under British Rule got so out of hand and destroyed so much Greek property in Turkey that Premier Adnan Menderes called out the army and declared martial law. Greece reacted by withdrawing its representatives from the NATO headquarters in Turkey, and relations between the two NATO partners became quite strained. Shortly after the abortive tripartite meeting, Field Marshal John Harding, chief of the British imperial general staff, was named governor of Cyprus and arrived on the island to assume his post in October 1955. Harding immediately began talks with Makarios, describing a multimillion-pound development plan that would be adopted contingent on acceptance of limited self-government and postponement of self-determination. Harding wanted to leave no doubt that he was there to restore law and order, and Grivas wanted the new governor to realize that a get-tough policy was not going to have any great effect on EOKA. In November Harding declared a state of emergency, banning public assemblies, introducing the death penalty for carrying a weapon, and making strikes illegal. British troops were put on a wartime footing, and about 300 British policemen were brought to the island to replace EOKA sympathizers purged from the local force. Further talks between Harding and Makarios in January 1956 began favourably but degenerated into a stalemate and broke up in March, with each side accusing the other of bad faith and intransigence. A few days later, Makarios was seized, charged with complicity in violence, and, along with the bishop of Kyrenia and two other priests, exiled to the Seychelles. This step removed the archbishop’s influence on EOKA, leaving less moderate forces in control. The level of violence on Cyprus increased, a general strike was called, and Grivas had political leadership thrust on him by the archbishop’s absence. In July the British government appointed Lord Radcliffe, a jurist, to the post of commissioner for constitutional reform. Radcliffe’s proposals, submitted in December, contained provisions for a balanced legislature, as in former schemes. But the proposals also included an option of self-determination at some indefinite time in the future and safeguards for the Turkish Cypriot minority. Turkey accepted the plan, Greece rejected it outright, and Makarios refused to consider it while in exile. [‘No Cyprus, no certain facilities to protect our supply of oil. No oil, unemployment and hunger in Britain. It is as simple as that.’] In the period before 1956, the indispensability of Cyprus to strategic interests of Britain were summarized by Sir Anthony Eden, the Prime Minister between 1955 and 1957, with the above phrases. The Suez crisis that unfolded in late November 1956 changed the global power balances to the detriment of European powers even more. Britain’s influence in the Middle East began declining sharply and it was forced to adopt a less ambitious and more realistic policy. This, coupled with the hostility of the local population to British rule accelerated Britain’s departure from the island with the exception of two military bases that it managed to hold

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Part I: Constitutional Issues onto following the negotiations with Greece, Turkey and the USA. In early 1958, intercommunal strife became severe for the first time, and tension mounted between the governments of Greece and Turkey. Grivas tried to enforce an islandwide boycott of British goods and increased the level of sabotage attacks. In June 1958, British prime minister Harold Macmillan proposed a seven-year partnership scheme of separate communal legislative bodies and separate municipalities, which became known as the Macmillan Plan. Greece and Greek Cypriots rejected it, calling it tantamount to partition. The Macmillan Plan, although not accepted, led to discussions of the Cyprus problem between representatives of Greece and Turkey, beginning in December 1958. Participants for the first time discussed the concept of an independent Cyprus, that is neither enosis nor partition. This new approach was stimulated by the understanding that Makarios was willing to discuss independence in exchange for abandonment of the Macmillan Plan. Subsequent talks between the foreign ministers of Greece and Turkey, in Zurich in February 1959, yielded a compromise agreement supporting independence.

7. The Radcliffe Proposals: a summary Note: This is an unofficial summary, not the text of Lord Radcliffe’s report. INTRODUCTION The proposals should not be considered in a setting for which they are not intended. In the first place, they have not been framed for introduction in Cyprus as it is today. They contemplate a Cyprus in which, on the one hand, men can once more express their views without fear of terrorist intimidation, and in which, on the other hand, emergency measures, distorting ordinary life, have come to an end. Secondly, it is not within the province of a constitution for a territory under the sovereignty of HM the Queen either to provide for, or to provide against, the possibility of a change in its international status. Furthermore, the terms of reference communicated by the Secretary of State on 12 September 1956 specifically directed that the constitution should be consistent with the requirement – ‘that during the period of the constitution Cyprus is to remain under British sovereignty’. Thirdly, the terms of reference further required – ‘that all matters relating to external affairs, defence, and internal security are retained in the hands of HMG or the Governor’, and that while it should be ‘based on the principles of liberal democracy’ and should confer ‘a wide measure of responsible selfgovernment’ the constitution was to contain – ‘such reservations, provisions and guarantees as may be necessary to give a just protection to the special interests of the various communities’. 12

Cyprus under British Rule A Precise Framework Preferable While recognising that a written constitution is no more than a legal framework for a political body in which there is inherent the capacity of growth and development, in the special conditions of Cyprus, governed for the last 25 years without political institutions, advantage lies in constructing as precise a framework as is reasonably possible, particularly as regards the guarantees to preserve communal rights and the independence of intercommunal services. Consequently safeguards are recommended which virtually preclude any variation on a matter of substance which affects the special interests of the different communities. The Diarchy A form of constitution has been preferred which recognises explicitly the existence of the diarchy implicit in the terms of reference. Accordingly, it is proposed to invest the Governor with full law-making and executive power for his reserved field and to leave the local legislature correspondingly full master in its own field. This last is no hollow phrase. No provision is made for control of the Assembly by official representation or by making the introduction of bills subject to the Governor’s consent. Furthermore it is not proposed to delay the release of departments to the self-governing side by any scheme of ‘phasing’. A generous interpretation of the terms of reference in this respect is a fair exchange for the considerable reduction of the full possible scope of responsible self-government which results from the reservation of Defence and Internal Security. Regarding the problem of determining to which of the two fields of government a particular piece of legislation or executive act belongs, no good would be done by trying to provide exhaustive lists and definitions. What is important is to provide a means of resolving by reasonable discussion any doubts or difficulties that may arise. It is therefore proposed to constitute a Joint Council, a consultative body in which representatives of the reserved side and the selfgoverning side will keep each other informed as to what they are doing or proposing to do. But since defence and internal security involve matters which cannot reasonably be exposed in public proceedings, the Governor himself must finally decide whether or not his projected actions are properly within his reserved field, and also whether or not the Assembly’s legislation encroaches on it. On the other hand, the Governor is to have the power to delegate to the Legislative Assembly any piece of lawmaking which though within his reserved field can conveniently be committed to the self-governing side. Self-Government and Protection of Minorities The chief problem is to find a framework that will ensure that selfgovernment will reflect truly the will of the people without becoming an instrument by which a majority drawn from one community overrides the legitimate claims of a minority. The claim that the Turkish Cypriot

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Part I: Constitutional Issues community should be accorded political representation equal to that of the Greek Cypriot community, that 18 per cent of a population should share power equally with 80 per cent, has not been accepted. But this was not through any lack of respect for the misgivings that lay behind it, and the fact is that the constitution can be equipped with other effective means of securing the Turkish Cypriot and other smaller communities in the possession of their essential special interest. The means here recommended include the placing of those interests under the protection of independent tribunals as well as direct political devices, which will secure to the Turkish Cypriots virtual autonomy in matters which exclusively concern them. As regards the tribunals, great importance is attached to the contributions that the judicial power can make to the resolution of intercommunal disputes and, thereby, to the removal of a large part of the political difficulties of self-government in Cyprus. THE CONSTITUTIONAL PROPOSALS Note: Certain of Lord Radcliffe’s explanatory notes from the covering report have been included in the following summary. THE PURPOSE OF THE CONSTITUTION 1. The purpose is to regulate the exercise of political power in Cyprus as a territory under the sovereignty of Her Majesty the Queen. GOVERNOR AND LEGISLATIVE ASSEMBLY 2. There will be a Governor, appointed by Her Majesty. There will be a Deputy Governor, appointed by the Governor. There will be a Legislative Assembly and a Cabinet of Ministers responsible to that Assembly. DISTRIBUTION OF POWERS Self-governing matters 3. With the exception of matters reserved to the Governor and certain intercommunal matters, the general power to make laws for the good government of Cyprus will be exercised by the Legislative Assembly. Laws will be subject to the assent of the Governor as constitutional ‘head’ on Her Majesty’s behalf, but his assent can only be withheld in certain specific cases detailed below. The lawmaking powers of the Assembly will be subject to the safeguards (detailed below) protecting the interests of the various communities and to the provisions in the constitution for the making of Emergency Laws during a period of Public Emergency. 4. Subject to the same exceptions, so far as relevant, the administration of Government and the executive power will be exercised through Ministers chosen from the Legislative Assembly. It will be the Governor’s duty to act on their advice. The general conception is that the Governor should

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Cyprus under British Rule withdraw from active intervention in the work of the self-governing side, assuming instead the status of the constitutional ‘head’ on Her Majesty’s behalf. He will not take part in meetings of the Cabinet or of the Legislative Assembly. Governor’s matters 5. The Governor will retain power to make ordinances and conduct executive administration in respect of – (a) external affairs, (b) defence, including the fulfilment by HMG of their international obligations, (c) internal security. Intercommunal matters 6. In the interest of the different communities the constitution accords special treatment to the subjects of broadcasting and intercommunal education. THE LEGISLATIVE ASSEMBLY A single Chamber 7. It is proposed that the legislature of Cyprus should consist of a single Chamber. No sufficient advantage would be gained by a bicameral structure, having regard to the importance of simplicity, of facing a single Chamber squarely with the responsibility of its own decisions, of avoiding the distracting controversies which can result from two Chambers, and lastly of bringing all the available political talent into a single responsible Assembly. Furthermore, as a means of protecting minority rights a second Chamber would be unlikely to prove a better instrument than the system here recommended which allows resort to a competent and independent tribunal. Composition 8. The Assembly will consist of a Speaker, a Deputy Speaker and 36 other members; 24 members will be elected by voters on a general roll, from which Turkish Cypriots alone will be excluded, and six by voters on a separate Turkish Cypriot roll. The remaining six will be nominated by the Governor and will include nominees who will represent the smaller minorities without the formalities of separate communal rolls. There are to be no official members in the Assembly. Electoral matters 9. The franchise will be extended to women and the minimum age for

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Part I: Constitutional Issues

10.

11.

12.

13.

14.

voters will be 21. Adherence to the old rule of male franchise would hardly conform with liberal or progressive ideas. Candidates for election as Members must be over 25. Civil Servants and persons under any acknowledgement of allegiance to a Foreign Power are excluded. Constituencies. The 24 constituencies filled by voters on the general roll will be allocated to the six districts as follows: Nicosia town, two urban constituencies; Nicosia district and Kyrenia town and district combined, seven rural constituencies; Larnaca, Limassol and Famagusta, one urban constituency each and respectively two, three and four rural constituencies; Paphos town and district combined, three constituencies. Of the six constituencies filled by Turkish Cypriot voters, two will be allocated to Nicosia and Kyrenia combined and one each to the other four districts. Frequency of elections. The Assembly shall be automatically dissolved on the expiration of four years from the date of the preceding general election. Electoral Laws. The Assembly will have the power to alter by law the provisions of the constitution regulating the electoral matters referred to in this section, provided that no such alterations affecting Turkish Cypriot voters, members, or constituencies shall be operative unless supported by at least two-thirds of the Turkish Cypriot members.

The Speaker and Deputy Speaker 15. These will be appointed at the beginning of the Assembly by majority vote of the members. If either is a member his seat will be declared vacant and a by-election held to replace him. If the Speaker is a Greek Cypriot the Deputy Speaker must be a Turkish Cypriot and vice versa. But no Turkish Cypriot may be chosen unless he is approved by at least two-thirds of the Turkish Cypriot members. Language 16. A member may address the Assembly in English, Greek or Turkish, provided that an immediate oral translation of his speech into either or both the other languages is made available if any member so requests and the Speaker so directs. There is to be a printed record of speeches which, like all bills and other records, will be printed in all three languages. Standing Orders 17. Prior to the first meeting of the Assembly the Governor will cause to be prepared a set of standing orders, which will govern the proceedings of the Assembly until any part of them is amended by resolution of the Assembly. Such amendments shall be effective only if a majority of the Turkish Cypriot and nominated members combined votes in favour.

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Cyprus under British Rule Sessions 18. Sessions must be held at least once a year. The Governor shall have the power to prolong or dissolve the Assembly but not without consultation with the Chief Minister. Quorum 19. Ten members shall constitute a quorum and decisions shall be by majority vote. Salaries and Allowances 20. Members will be paid salaries and allowances which in the first instance will be fixed by the Governor. The Clerk of the Assembly 21. This officer will prepare and circulate Daily Orders, have custody of records, count votes and have charge of the administrative work of the Assembly. He will be a member of the Public Service and be appointed by the Speaker after consultation with the Chairman of the Public Service Commission. 22. There shall be a Deputy Clerk, who shall be a Turkish Cypriot if the Clerk is a Greek Cypriot, and vice versa. Publication of Bills 23. Before being brought before the Assembly, all bills shall be published in an official ‘Government Gazette’. Assent to Legislation 24. Upon the Governor signifying his consent, a Bill passed by the Legislative Assembly shall become law. The Governor may only withhold his assent if: (i) A bill deals, in his opinion, with any Governor’s matter (as listed in paragraph 5 above), in which case he may return the Bill intimating that he can only signify assent if specified alterations are made taking it outside the range of Governor’s matters. (ii) If a Bill appears to conflict with the guarantees or other provisions of the constitution, in which case he may refer the Bill to the Supreme Court for decision. This latter function, to decide upon the validity of legislative acts, has been discharged acceptably, by the courts of many countries under many systems. 25. Reservation of Assent. The Governor will await instructions from Her Majesty before giving assent to Bills affecting the following:

17

Part I: Constitutional Issues (i) (ii) (iii) (iv)

the constitution and procedure of the Legislative Assembly; the currency of Cyprus or exchange control; the Royal Prerogative; the trustee status of Cyprus Government Stock; but only in this last case is the power of disallowance retained, and this for purely technical reasons.

26. Turkish Cypriot Affairs. Bills presented for assent shall be accompanied by a certificate from the Attorney-General to the effect that it does not affect any matter exclusively of Turkish Cypriot concern, or if it does do so that it was passed with the concurrence of the necessary two-thirds of the Turkish Cypriot members. 27. Public Officers. Bills affecting the position of a public officer shall be accompanied by a certificate, signed by the Attorney-General and the Chairman of the Public Services Commission that they satisfy the obligations of a good employer or involve no breach of contract where one is involved. 28. Subject to the foregoing the Governor will signify assent to any Bill duly presented to him. THE EXECUTIVE The Chief Minister 29. The Chief Minister will act as Head of the Government in self-governing matters. He will be appointed by the Governor, whose duty it will be to select the person who appears to him to command the support of the majority of members of the Assembly. The Minister for Turkish Cypriot Affairs 30. This Minister will be appointed by the Governor at his discretion from among the members of the Assembly elected by Turkish Cypriot voters. He will be responsible for an office dealing with Turkish Cypriot affairs. Other Ministers 31. The other Ministers will be appointed by the Governor from among the members of the Assembly on the recommendation of the Chief Minister, to take charge of the Ministries specified below. The Cabinet 32. The Cabinet will consist of the Chief Minister, the Minister for Turkish Cypriot Affairs and the other Ministers. The Chief Minister will keep the Governor informed regarding the policies of the Cabinet. There will be a secretary of the Cabinet.

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Cyprus under British Rule The Ministries 33. In addition to the Chief Minister’s Office, it is proposed that in the first government the Chief Minister will also have charge of a separate Ministry for Development. The following will be the other Ministries, apart from the Office for Turkish Cypriot Affairs: The Ministry for the Interior and Local Government The Ministry for Finance The Ministry for Communications and Works The Ministry for Social Services The Ministry for Natural Resources 34. A simple test of the reality of self-government under the constitution is to list the departments and branches of government existing in Cyprus today that may be expected to pass into the control of these Ministries, responsible through their Ministers to the elected Assembly. The Administration in Cyprus has accordingly drawn up a provisional list showing an appropriate distribution of existing departments and branches among the proposed Ministries. 35. It will be within the power of the Legislative Assembly to amend by Law the number and functions of the above Ministries. 36. A Permanent Secretary, who will be a public officer, will exercise supervision over each Ministry subject to the general direction of the Minister. Change of Government 37. If he is satisfied that the Chief Minister no longer enjoys the support of the majority of members, the Governor may relieve him of his office. The latter will be entitled to request the Governor to dissolve the Assembly in order to test the views of the electorate, and in the absence of any special reason in the public interest the Governor will accordingly dissolve the Assembly. RESRICTIONS AND GUARANTEES 38. No law or executive action shall conflict with the rights detailed in the following paragraphs, which constitute fundamental restrictions on the powers of self-government granted by the constitution. Religion 39. All persons will be entitled to the free exercise of any creed or religion. Institutions and Schools 40. Persons acting individually, in association or as a community will be entitled to maintain, at their own expense, schools and charitable, religious and cultural institutions. 19

Part I: Constitutional Issues Language 41. All persons will be entitled to the free use of any language. Non-discrimination 42. There shall be no discrimination against any person on account of birth, nationality, language, race or religion. Expropriation 43. No person shall be deprived of property by compulsory power unless it be for public purposes and unless just compensation is provided. Access to Courts 44. There shall be equality of access to Court of Law for all persons. Turkish Cypriot Affairs 45. Unless two-thirds of the Turkish Cypriot members support it, the Legislative Assembly may not make any law that deals with any matter exclusively of Turkish Cypriot concern. Tribunals 46. The independent tribunals to which complaints about violation of the above rights can be preferred will be the Supreme Court, in the case of legislative acts, and the Tribunal of Guarantees, in the case of executive actions. A grave responsibility is placed on these Tribunals, but not one that can be considered too heavy for the Cyprus judiciary, which enjoys a high reputation for conscientious performance of its duties. On the other hand, given presidents who by virtue of their origin are uncommitted to either community in the eyes of the public, and an equal number of Greek Cypriot and Turkish Cypriot members, there is no reason for misgivings as to the confidence that will be placed in the judges’ impartiality. GOVERNOR’S MATTERS 47. As a consequence of the reservation of powers detailed above (paragraph 5) the Governor will retain in his hands all matters clearly related to External Affairs, Defence and Internal Security, such as the control of the Armed Forces, Police, Prisons and relations with foreign states. In addition the following are other matters that will generally fall within his control: (a) The importation of goods. (b) Immigration, naturalisation and issue of passports. (c) Shipping, air and wireless services between Cyprus and other countries.

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Cyprus under British Rule 48. There may also be matters normally falling within the self-governing field with which, at some places and on some occasions, the Governor may have to deal as affecting the reserved subjects. But it would be a distortion to suggest that in most places or on most occasions the selfgoverning field will be invaded in this way. Furthermore, the Governor is to have the power to invite the Assembly to take over from him any particular piece of law-making which, though formally within his reserved field, he can conveniently commit to the self-governing side. It is Lord Radcliffe’s hope that, as confidence grows, this power might be increasingly used. Ordinances 49. The Governor will have power to make such Ordinances as he considers necessary for the purposes of the matters reserved to him. Such ordinances will be prefaced by a declaration that they are necessary for external affairs, defence and internal security. His ordinances may be disallowed by Her Majesty, in which case they cease to have effect. 50. The Governor will have a Legal Secretary to give him legal advice in the exercise of his reserved powers. He will have no power to raise money by taxation. The Defence Committee 51. This Committee, under the presidency of the Governor, will advise him with regards to Governor’s matters. Members will include the Deputy Governor, the Legal Secretary and representatives of the Armed Forces in Cyprus. Restrictions and Guarantees 52. In making any Ordinances or authorising any executive act in respect of Governor’s matters, the Governor must have regard to the restrictions and guarantees set out above (paragraphs 38 to 46). The jurisdiction of the Tribunal of Guarantees will extend to executive acts in respect of Governor’s matters. JOINT COUNCIL OF CYPRUS 53. The function of this consultative body will be to harmonise relations between the two sides of government and to discuss matters of common concern. Apart from the Governor, who will preside, the following will be members: Self-governing side

Governor’s side

The Chief Minister The Minister for Turkish Cypriot Affairs

Deputy Governor The Legal Secretary 21

Part I: Constitutional Issues Another Minister recommended by the Chief Minister The Attorney-General

A Service member of the Defence Committee

The Legal Sub-Committee 54. This Standing Committee of the Joint Council, consisting of the Legal Secretary and the Attorney-General, will decide which prosecutions for criminal offences are to be conducted by the Legal Secretary (as affecting Governor’s matters) and which by the Attorney-General (as affecting selfgoverning matters). To act as a channel between the Police and the SubCommittee a Director of Public Prosecutions may be appointed. THE SUPREME COURT Jurisdiction 55. The Supreme Court will adjudicate in all proceedings in which the validity of any Law of the Assembly is called in question as being contrary to the provisions of the constitution. It will have a similar responsibility to that accorded to the judicial power in many other countries, including the United States and Australia, namely that of deciding whether particular legislative acts that are called in question are valid or invalid under the constitution. 56. Appeal from a decision of the Supreme Court may be made to the Judicial Committee of the Privy Council. Composition 57. The Supreme Court will consist of the Chief Justice, the President, and two other judges, one Greek Cypriot and the other Turkish Cypriot. The Chief Justice will be appointed by the Governor after consultation with the Chief Minister and must be neither a native of Cyprus nor resident there at the time of his appointment. The present composition of the Supreme Court will thus be retained. THE TRIBUNAL OF GUARANTEES Function 58. The Tribunal will investigate any complaints in respect of Government acts (other than Laws of the Assembly) alleged to violate fundamental rights guaranteed by the constitution. There will be no appeal from its decisions. Complaints may be preferred to the Tribunal by individuals, associations, or corporations, The jurisdiction of the tribunal will extend to acts of Government relating to Governor’s matters except where investigations would prejudice interests of defence or public security. If the Tribunal finds a complaint well-founded it will have the power either to

22

Cyprus under British Rule make a declaration of right, or to annul the act of Government complained of or make recommendations for remedial action by the Department concerned. The Tribunal will have the power to award compensation out of public funds. Composition 59. Members of the Tribunal will be appointed by the Governor after consultation with the Chief Minister and the Chief Justice. The membership shall be arranged so that it includes an equal number of Greek and Turkish Cypriots and that the Chairman is neither Greek Cypriot nor Turkish Cypriot. No Minister and no Public Servant outside the judicature can be appointed to the Tribunal. SPECIAL TURKISH LAWS 60. If at any time two-thirds or more of the Turkish Cypriot members of the Assembly and two-thirds or more of the members of the Evcaf Council petition the Governor for amendment of the Turkish Family Law, Family Courts Law, Mufti Law and Evcaf and Vakf law, the Governor may make a Regulation enacting such amendments, provided he is satisfied that a Bill to enact such amendments is unlikely to be passed by the Assembly. INTERCOMMUNAL MATTERS 61. There are two activities with which the Government of Cyprus is at present directly concerned but which it is not possible to fit into the general scheme of self-government without imperilling its basis of equitable protection for each community. Broadcasting 62. Information and Public Relations in general will pass to the selfgoverning side, and the Governor may set up an independent information service relating to his reserved field. Broadcasting does not fit into this scheme of division. On the other hand, broadcasting should be kept secure from the impact of party or political controversies, and from any tendency to favour one community at the expense of another. A chartered public institution, on the lines of the BBC, is called for to hold a fair balance between the interest and claims of the different communities and to ensure that this public service is genuinely free from outside control, whether by the Governor or any other political authority. 63. A Cyprus Broadcasting Corporation should have charge of broadcasting by sound or television for reception by the public in Cyprus. It would operate as a public monopoly service under a charter defining its duty to conduct its transmissions with impartial attention to the interest and susceptibilities of the different communities. The control of the corporation and the ownership of its assets would be vested in a Board of five

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Part I: Constitutional Issues Trustees, two Greek Cypriots, two Turks and a chairman who must be neither Greek Cypriot nor Turkish Cypriot. Trustees will be appointed by the Governor after consultation with the Chief Minister. 64. These arrangements for the future of broadcasting, providing equal representation of the two main communities on the controlling body, are an essential feature of the distribution of powers under the constitution and are as much a guarantee of minority rights as other more obvious provisions. 65. Finance of CBC. The Corporation would enjoy the revenue arising from wireless licences and may accept advertisements for broadcasting if the Trustees so decide. The Corporation’s expenditure would be charged against receipts from these sources. Since this is a service for the people of Cyprus in the full sense, the resulting deficit (if any) should be a charge on Cyprus revenues, as is the cost of the CBS at present. 66. The Corporation would submit to the Governor estimates of revenue and expenditure for each year, which he would consider in consultation with the Minister of Finance and the Minister for Turkish Cypriot Affairs. After approving them he would, when a deficit is involved, send a precept to the Minister of Finance certifying the amount required. Intercommunal Education 67. This is the second existing Government activity requiring special treatment and it concerns only those institutions, such as the English School for boys at Nicosia, the American Academy for boys at Larnaca and the Teachers Training Colleges, which do not cater exclusively for any one community. The education offered by intercommunal schools is at present much sought after by parents, yet it cannot honestly be regarded as a challenge to the separate systems followed in the numerous Greek and Turkish Cypriot secondary schools. It remains a hopeful path towards a mitigation of the social separations that are at the bottom of the problem of Cyprus, and those who enter on it enter by their parents’ free choice. This branch of education does provide a valuable supplement to the other separate systems, but it does not fit the pattern envisaged in the handing over of the rest of education to a Greek Cypriot department of education, on the one hand, and to the Office for Turkish Cypriot Affairs on the other. The solution lies in placing the instruments of intercommunal education under an independent board. 68. An Intercommunal Education Board will maintain and develop education facilities on the basis that they are available to the different communities without distinction. It will take over responsibility for the different communities without distinction. It will take over responsibility for the English School, the Cyprus Technical Institute and the Teachers Training Colleges and assist other schools that, though not maintained by the Board, provide intercommunal education. It will also promote schemes of

24

Cyprus under British Rule assistance for higher education outside Cyprus. The Board will consist of a Greek Cypriot, a Turkish Cypriot and a chairman who is neither Greek Cypriot nor Turkish Cypriot. 69. Financing of Intercommunal Education. Although this is a service for the benefit of Cypriots it is a supplementary rather than an essential service. Furthermore, it will be outside the control of the Assembly and the Cabinet. It is recommended that the whole of the necessary funds for it should be found from United Kingdom resources as a supplement to what has already been provided or promised for the economic development of Cyprus. THE PUBLIC SERVICE The Public Service Commission 70. Appointments, promotions, and terminations of appointment of officers in the Public Service (other than members of HM Forces, the Police and the Prison Service) will be vested in the Governor acting in accordance with the recommendations of a Public Service Commission. The members of the Commission will be appointed by the Governor after consultation with the Chief Minister and the Governor in his discretion will nominate which member shall be chairman. No member of the Assembly and no Public Officer may be a member of the Commission. 71. Regulations may be made by the Governor in consultation with the Chief Minister and the Chairman of the Commission regarding the exercise of the Commission’s functions provided that: (a) The Commission shall at all times hold a fair balance between the claims of members of different communities to opportunities of public service so far as the needs of the service allow. (b) Other things being equal, a candidate of local origin shall be preferred when recruitment is being considered. 72. Special Posts. The Secretary of the Cabinet, the Permanent Secretaries to the Ministries and certain other posts of comparable importance will be appointed by the Governor after consultation with the Chief Minister and the Chairman of the Commission. The Auditor-General 73. The Auditor-General will be appointed by the Governor after consultation with the Chief Minister. He will audit the accounts of all departments and offices of Government except those concerned with Governor’s matters, and will report annually to the Assembly.

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Part I: Constitutional Issues The Attorney-General 74. The Attorney-General, who may be a member of the Assembly, will be appointed by the Governor on the recommendation of the Chief Minister. He will be responsible for advising the Cabinet and the Ministers on legal questions relating to self-governing matters, and for the conduct of legal proceedings relating to them. He shall also advise the Governor if requested. Obligations to Public Officers 75. The financial provisions detailed below include the safeguard that contractual obligations to Public Officers (except those employed on the Governor’s side) to pay salaries, allowances and pensions, will be an obligatory charge on the Cyprus revenues. THE JUDICIAL SERVICE The Judicial Service Commission 76. Appointments, promotion, and termination of appointments of judges (except judges of the Supreme Court) and judicial officers will be vested in the Governor acting in accordance with the recommendations of a Judicial Service Commission consisting of: (i) (ii) (iii) (iv)

The Chief Justice; The Attorney-General; The Chairman of the Public Service Commission; Two persons appointed by the Governor.

77. The Commission shall at all times hold a fair balance between the claims of members of the different communities to opportunities of judicial service so far as the needs of the Service allow. 78. When recruitment is being considered the Commission shall give preference to candidates of local origin, other things being equal. Administration of the Court 79. The Chief Justice will have responsibility for the conduct of judicial business and for transfers of judges and judicial officers. FINANCE The Cyprus Consolidated Fund 80. The diarchy resulting from the reservation of powers over defence and internal security requires that there should be two separate public funds for Cyprus. The first, being the produce of the Cyprus revenues available to be raised and appropriated according to decisions of the self-governing

26

Cyprus under British Rule Assembly and Ministers, will be known as the Cyprus Consolidated Fund. The Minister of Finance will prepare annual estimates or revenue and expenditure, which, on approval by the Cabinet, are to be laid before the Assembly. 81. Permanent Charges on the Fund will include the following (a contribution to cover the deficit, if any, in the Broadcasting budget has already been mentioned): (a) The salaries and remunerations of the Chief Justice and other judges, the Attorney-General, the Auditor-General and certain other officers appointed by the Governor under the constitution. (b) The sums required to pay the salaries of the Governor and the Deputy Governor and the expenses of their official establishments. (c) A contribution of £10,000 to Imperial Defence (the same token amount as at present). (d) The sums required to meet contractual obligations to Public Officers (excluding Police and other officers employed in the Governor’s reserved field). 82. Internal Security Contribution. In addition, there will be paid from the Fund a contribution of £750,000 towards the cost of the Police Force and the Prison Service, which sum is the equivalent of the expenditure on these services in 1954. The balance of the future annual cost of these services, which will be met from the Governor’s side, is estimated at some £2,250,000, disregarding special expenditure, which will not recur when the emergency is over, and excluding capital expenditure on accommodation, which may require another £5,000,000 in the next five years. The amount of the contribution has been fixed having regard, on the one hand, to the fact that the control of the Police and the Prison Service is not on the self-governing side. 83. Finance of Turkish Cypriot Affairs. An annual sum will be charged on the Cyprus Consolidated Fund to provide for the establishment of the Office of Turkish Cypriot Affairs and the discharge of its functions. The sum to be provided shall be discussed in the first instance by the Chief Minister and the Minister for Turkish Cypriot Affairs. If they fail to agree the matter will be referred to the Governor whose decision will be final. 84. It is further specifically provided that the sum to be provided for Turkish Cypriot elementary education in any year shall not be less than a sum proportionate to the provision for Greek Cypriot elementary education having regard to the number of pupils in the two communities. Furthermore, the sum provided for Turkish Cypriot secondary education must not be less than in the last year before the coming into force of the constitution.

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Part I: Constitutional Issues The Defence Fund 85. This second Public Fund required by the diarchy system will be controlled by the Governor and will serve the purposes of the reserved functions of defence and internal security. The Governor will prepare estimates of expenditure from the Defence Fund and submit them for approval to the Secretary of State. Apart from the contributions of £10,000 for defence and £750,000 for the Police and Prisons to be made by the self-governing side, the whole expenditure from the Defence Fund will be covered, it is presumed by contributions from United Kingdom funds, which, as previously recommended, will also bear the whole cost of intercommunal education. EMERGENCY LAWS 86. Her Majesty will be entitled by Order-in-Council to declare that a public emergency exists in Cyprus and to provide for the security of public order, supplies and services during the emergency. Such an Order-in-Council may suspend all or any provisions of the constitution and may grant the Governor legislative and executive power in the self-governing field.

8. The Macmillan Plan of 1958 As Mr Harold Macmillan, the then Prime Minister of Great Britain, explained to Parliament (Hansard, 19 June 1958). Cyprus should enjoy the advantages of association not only with the United Kingdom, and, therefore, with the British Commonwealth, but also with Greece and Turkey. Since the three Governments of the United Kingdom, Greece and Turkey all have an interest in Cyprus, Her Majesty’s Government will welcome the co-operation and participation of the two other Governments in a joint effort to achieve the peace, progress and prosperity of the island. The Greek and Turkish Governments will each be invited to appoint a representative to co-operate with the Governor in carrying out this policy. The island will have a system of representative Government with each Community exercising autonomy in its own communal affairs. In order to satisfy the desire of the Greek and Turkish Cypriots to be recognised as Greeks and Turks, Her Majesty’s Government will welcome an arrangement which gives them Greek or Turkish nationality while enabling them to retain British nationality. To allow time for the new principle of partnership to be fully worked out and brought into operation under this plan in the necessary atmosphere of

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Cyprus under British Rule stability, the international status of the island will remain unchanged for seven years. A system of representative government and communal autonomy will be worked out by consultation with representatives of the two communities and with the representatives of the Greek and Turkish Governments. The essential provisions of the new constitution will be: (a) There will be a separate House of Representatives for each of the two communities, and these Houses will have final legislative authority in communal affairs. (b) Authority for internal administration, other than communal and internal security, will be undertaken by a Council presided over by the Governor and including the representatives of the Greek and Turkish Governments and six elected Ministers drawn from the House of Representatives, four being Greek Cypriot and two Turkish Cypriots. (c) The Governor, acting after consultation with the representatives of the Greek and Turkish Governments, will have reserve powers to ensure that the interests of both communities are protected. (d) External affairs, defence and internal security will be matters specifically reserved to the Governor acting after consultation with the representatives of the Greek and Turkish Governments. (e) The representatives of the Greek and Turkish Governments will have the right to require any legislation that they consider to be discriminatory to be reserved for consideration by an impartial tribunal.

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THE REPUBLIC OF CYPRUS FRAMEWORK _________________________________________

9. The Zurich and London Agreements, 19 February 1959 Memorandum setting out the agreed foundation for the final settlement of the problem of Cyprus The Prime Minister of the United Kingdom of Great Britain and Northern Ireland, the Prime Minister of the Kingdom of Greece and the Prime Minister of the Turkish Republic, taking note of the Declaration by the Representative of the Greek-Cypriot Community and the Representative of the TurkishCypriot Community that they accept the documents annexed to this Memorandum as the agreed foundation for the final settlement of the problem of Cyprus, hereby adopt, on behalf of their respective Governments, the documents annexed to this Memorandum and listed below, as the agreed foundation for the final settlement of the problem of Cyprus, On behalf of the Government of the United Kingdom of Great Britain and Northern Ireland HAROLD MACMILLAN On behalf of the Government of the Kingdom of Greece C. KARAMANLIS On behalf of the Government of the Turkish Republic A. MENDERES London, 19 February 1959

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Part I: Constitutional Issues A. BASIC STRUCTURE OF THE REPUBLIC OF CYPRUS 1. The State of Cyprus shall be a Republic with a presidential regime, the President being Greek and the Vice-President Turkish elected by universal suffrage by the Greek and Turkish communities of the Island respectively. 2. The official languages of the Republic of Cyprus shall be Greek and Turkish. Legislative and administrative instruments and documents shall be drawn up and promulgated in the two official languages. 3. The Republic of Cyprus shall have its own flag of neutral design and colour, chosen jointly by the President and the Vice-President of the Republic. Authorities and communities shall have the right to fly the Greek and Turkish flags on holidays at the same time as the flag of Cyprus. The Greek and Turkish communities shall have the right to celebrate Greek and Turkish national holidays. 4. The President and the Vice-President shall be elected for a period of five years. In the event of absence, impediment or vacancy of their posts, the President and the Vice-President shall be replaced by the President and the Vice-President of the House of Representatives respectively. In the event of a vacancy in either post, the election of new incumbents shall take place within a period of not more than 45 days. The President and the Vice-President shall be invested by the House of Representatives, before which they shall take an oath of loyalty and respect for the Constitution. For this purpose, the House of Representatives shall meet within 24 hours after its constitution. 5. Executive authority shall be vested in the President and the VicePresident. For this purpose they 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 VicePresident who shall appoint them by an instrument signed by them both. The Ministers may be chosen from outside the House of Representatives. Decisions of the Council of Ministers shall be taken by an absolute majority. Decisions so taken shall be promulgated immediately by the President and the Vice-President by publication in the official gazette. However, the President and the Vice-President shall have the right of final veto and the right to return the decisions of the Council of Ministers under the same conditions as those laid down for laws and decisions of the House of Representatives. 6. Legislative authority shall be vested in a House of Representatives elected for a period of five years by universal suffrage of each community separately in the proportion of 70 per cent for the Greek community and 30 per cent for the Turkish community, this proportion being fixed independently of statistical data. (NB – The number of Representatives shall be fixed by mutual agreement between the communities.) The House of Representatives shall exercise authority in all matters other than

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The Republic of Cyprus Framework

7.

8.

9.

10.

those expressly reserved to the Communal Chambers. In the event of a conflict of authority, such conflict shall be decided by the Supreme Constitutional Court which shall be composed of one Greek, one Turk and one neutral, appointed jointly by the President and the VicePresident. The neutral judge shall be president of the Court. Laws and decisions of the House of Representatives shall be adopted by a simple majority of the members present. They shall be promulgated within 15 days if neither the President nor the Vice-President returns them for reconsideration as provided in Point 9 below. The constitutional Law, with the exception of its basic articles, may be modified by a majority comprising two-thirds of the Greek members and two-thirds of the Turkish members of the House of Representatives. Any modification of the electoral law and the adoption of any law relating to the municipalities and of any law imposing duties or taxes shall require a simple majority of the Greek and Turkish members of the House of Representatives taking part in the vote and considered separately. On the adoption of the budget, the President and the Vice-President may exercise their right to return it to the House of Representatives, if in their judgement any question of discrimination arises. If the House maintains its decisions, the President and the Vice-President shall have the right of appeal to the Supreme Constitutional Court. The President and the Vice-President, separately and conjointly, shall have the right of final veto on any law or decision concerning foreign affairs except the participation of the Republic of Cyprus in international organisations and pacts of alliance in which Greece and Turkey both participate, or concerning defence and security as defined in Annex 1. The President and the Vice-President of the Republic shall have, separately and conjointly, the right to return all laws and decisions, which may be returned to the House of Representatives within a period of not more than 15 days for reconsideration. The House of Representatives shall pronounce within 15 days on any matter so returned. If the House of Representatives maintains its decisions the President and the VicePresident shall promulgate the law or decision in question within the time-limits fixed for the promulgation of laws and decisions. Laws and decisions that are considered by the President or the Vice-President to discriminate against either of the two communities shall be submitted to the Supreme Constitutional Court, which may annul or confirm the law or decision or return it to the House of Representatives for reconsideration, in whole or in part. The law or decision shall not become effective until the Supreme Constitutional Court or, where it has been returned, the House of Representatives has taken a decision on it. Each community shall have its Communal Chamber composed of a number of representatives which it shall itself determine. The Communal Chambers shall have the right to impose taxes and levies on members of

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Part I: Constitutional Issues

11.

12.

13.

14.

34

their community to provide for their needs and for the needs of bodies and institutions under their supervision. The Communal Chambers shall exercise authority in all religious, educational, cultural and teaching questions and questions of personal status. They shall exercise authority in questions where the interests and institutions are of a purely communal nature, such as sporting and charitable foundations, bodies and associations, producers’ and consumers’ co-operatives and credit establishments, created for the purpose of promoting the welfare of one of the communities. (NB – It is understood that the provisions of the present paragraph cannot be interpreted in such a way as to prevent the creation of mixed and communal institutions where the inhabitants desire them.) These producers’ and consumers’ co-operatives and credit establishments, which shall be administered under the laws of the Republic, shall be subject to the supervision of the Communal Chambers. The Communal Chambers shall also exercise authority in matters initiated by municipalities that are composed of one community only. These municipalities, to which the laws of the Republic shall apply, shall be supervised in their functions by the Communal Chambers. Where the central administration is obliged to take over the supervision of the institutions, establishments, or municipalities mentioned in the two preceding paragraphs by virtue of legislation in force, this supervision shall be exercised by officials belonging to the same community as the institution, establishment or municipality in question. The Civil Service shall be composed as to 70 per cent of Greeks and as to 30 per cent of Turks. It is understood that this quantitative division will be applied as far as practicable in all grades of the Civil Service. In regions or localities where one of the two communities is in a majority approaching 100 per cent the organs of the local administration responsible to the central administration shall be composed solely of officials belonging to that community. The deputies of the Attorney-General of the Republic, the InspectorGeneral, the Treasurer and the Governor of the Issuing Bank may not belong to the same community as their principals. The holders of these posts shall be appointed by the President and the Vice-President of the Republic acting in agreement. The heads and deputy heads of the Armed Forces, the Gendarmerie and the Police shall be appointed by the President and the Vice-President of the Republic acting in agreement. One of these heads shall be Turkish and where the head belongs to one of the communities, the deputy head shall belong to the other. Compulsory military service may only be instituted with the agreement of the President and the Vice-President of the Republic of Cyprus. Cyprus shall have an army of 2000 men, of whom 60 per cent shall be Greek and 40 per cent Turkish. The security forces (gendarmerie and

The Republic of Cyprus Framework

15.

16.

17.

18.

19.

police) shall have a complement of 2000 men, which may be reduced or increased with the agreement of both the President and the VicePresident. The security forces shall be composed as to 70 per cent of Greeks and as to 30 per cent of Turks. However, for an initial period this percentage may be raised to a maximum of 40 per cent of Turks (and consequently reduced to 60 per cent of Greeks) in order not to discharge those Turks now serving in the police, apart from the auxiliary police. Forces, which are stationed in parts of the territory of the Republic inhabited, in a proportion approaching 100 per cent by members of a single community, shall belong to that community. A High Court of Justice shall be established, which shall consist of two Greeks, one Turk and one neutral, nominated jointly by the President and the Vice-President of the Republic. The President of the Court shall be the neutral judge, who shall have two votes. This Court shall constitute the highest organ of the judicature (appointments, promotions of judges, &c.). Civil disputes, where the plaintiff and the defendant belong to the same community, shall be tried by a tribunal composed of judges belonging to that community. If the plaintiff and defendant belong to different communities, the composition of the tribunal shall be mixed and shall be determined by the High Court of Justice. Tribunals dealing with civil disputes relating to questions of personal status and to religious matters, which are reserved to the competence of the Communal Chambers under Point 10, shall be composed solely of judges belonging to the community concerned. The composition and status of these tribunals shall be determined according to the law drawn up by the Communal Chamber and they shall apply the law drawn up by the Communal Chamber. In criminal cases, the tribunal shall consist of judges belonging to the same community as the accused. If the injured party belongs to another community, the composition of the tribunal shall be mixed and shall be determined by the High Court of Justice. The President and the Vice-President of the Republic shall each have the right to exercise the prerogative of mercy to persons from their respective communities who are condemned to death. In cases where the plaint and the convicted persons are members of different communities prerogative of mercy shall be exercised by agreement between the President and the Vice-President. In the event of disagreement the vote for clemency shall prevail. When mercy is accorded the death penalty shall be commuted to life imprisonment. In the event of agricultural reform, lands shall be redistributed only to persons who are members of the same community as the expropriated owners. Expropriations by the State or the Municipalities shall only be carried out on payment of a just and equitable indemnity fixed, in disputed cases, by the tribunals. An appeal to the tribunals shall have the

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Part I: Constitutional Issues

20.

21.

22.

23.

24.

25.

26.

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effect of suspending action. Expropriated property shall only be used for the purpose for which the expropriation was made. Otherwise the property shall be restored to the owners. Separate municipalities shall be created in the five largest towns of Cyprus by the Turkish inhabitants of these towns. However: (a) In each of the towns a co-ordinating body shall be set up which shall supervise work that needs to be carried out jointly and shall concern itself with matters that require a degree of co-operation. These bodies shall each be composed of two members chosen by the Greek municipalities, two members chosen by the Turkish municipalities and a President chosen by agreement between the two municipalities. (b) The President and the Vice-President shall examine within four years the question of whether or not this separation of municipalities in the five largest towns shall continue. With regard to other localities, special arrangements shall be made for the constitution of municipal bodies, following, as far as possible, the rule of proportional representation for the two communities. A Treaty guaranteeing the independence, territorial integrity and constitution of the new State of Cyprus shall be concluded between the Republic of Cyprus, Greece, the United Kingdom and Turkey. A Treaty of military alliance shall also be concluded between the Republic of Cyprus, Greece and Turkey. These two instruments shall have constitutional force. (This last paragraph shall be inserted in the Constitution as a basic article.) It shall be recognised that the total or partial union of Cyprus with any other State, or a separatist independence for Cyprus (that is the partition of Cyprus into two independent States), shall be excluded. The Republic of Cyprus shall accord most-favoured-nation treatment to Great Britain, Greece and Turkey for all agreements whatever their nature. This provision shall not apply to the Treaties between the Republic of Cyprus and the United Kingdom concerning the bases and military facilities accorded to the United Kingdom. The Greek and Turkish Governments shall have the right to subsidise institutions for education, culture, athletics and charity belonging to their respective communities. Equally, where either community considers that it has not the necessary number of schoolmasters, professors or priests for the working of its institutions, the Greek and Turkish Governments may provide them to the extent strictly necessary to meet their needs. One of the following Ministries – the Ministry of Foreign Affairs, the Ministry of Defence or the Ministry of Finance – shall be entrusted to a Turk. If the President and the Vice-President agree they may replace this system by a system of rotation. The new State which is to come into being with the signature of the Treaties shall be established as quickly as possible and within a period of not more than three months from the signature of the Treaties.

The Republic of Cyprus Framework 27. All the above Points shall be considered to be basic articles of the Constitution of Cyprus. ANNEX I A. The defence questions subject to veto under Point 8 of the Basic Structure are as follows: (a) Composition and size of the armed forces and credits for them. (b) Appointments and promotions. (c) Imports of warlike stores and of all kinds of explosives. (d) Granting of bases and other facilities to allied countries. B. The security questions subject to veto are as follows: (a) Appointments and promotions. (b) Allocation and stationing of forces. (c) Emergency measures and martial law. (d) Police laws. (It is provided that the right of veto shall cover all emergency measures or decisions, but not those which concern the normal functioning of the police and gendarmerie). D. DECLARATION BY THE GOVERNMENT OF THE UNITED KINGDOM The Government of the United Kingdom of Great Britain and Northern Ireland, having examined the documents concerning the establishment of the Republic of Cyprus, comprising the Basic Structure for the Republic of Cyprus, the Treaty of Guarantee and the Treaty of Alliance, drawn up and approved by the Heads of the Governments of Greece and Turkey in Zurich on 11 February 1959, and taking into account the consultations in London, from 11 to 16 February 1959, between the Foreign Ministers of Greece, Turkey and the United Kingdom. Declare: A. That, subject to the acceptance of their requirements as set out in Section B below, they accept the documents approved by the Heads of the Governments of Greece and Turkey as the agreed foundation for the final settlement of the problem of Cyprus. B. That, with the exception of two areas at (a) Akrotiri – Episkopi – Paramali, and (b) Dhekelia – Pergamos – Ayios Nikolaos – Xylophagou, which will be retained under full British sovereignty, they are willing to transfer sovereignty over the Island of Cyprus to the Republic of Cyprus subject to the following conditions: (1) that such rights are secured to the United Kingdom Government as are necessary to enable the two areas as aforesaid to be used effectively as military bases, including among others those rights indicated in the Annex attached, and that satisfactory guarantees are given by Greece, Turkey and the Republic of Cyprus for the integrity of the areas retained under British sovereignty and the use and enjoyment by the United Kingdom of the rights referred to above; (2) that provision shall be made by agreement for: I. the protection of the fundamental human rights of the various communities in Cyprus; II. the protection of the interests of the members of the public services in Cyprus; III. determining the nationality of persons affected by the settlement; IV. the assumption by the Republic of Cyprus of

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Part I: Constitutional Issues the appropriate obligations of the present Government of Cyprus, including the settlement of claims.

ANNEX The following rights will be necessary in connexion with the areas to be retained under British sovereignty: (a) to continue to use, without restriction or interference, the existing small sites containing military and other installations and to exercise complete control within these sites, including the right to guard and defend them and to exclude from them all persons not authorised by the United Kingdom Government; (b) to use roads, ports and other facilities freely for the movement of personnel and stores of all kinds to and from and between the above mentioned areas and sites; (c) to continue to have the use of specified port facilities at Famagusta; (d) to use public services (such as water, telephone, telegraph, electric power, &c.); (e) to use from time to time certain localities, which would be specified, for troop training; (f) to use the airfield at Nicosia, together with any necessary buildings and facilities on or connected with the airfield to whatever extent is considered necessary by the British authorities for the operation of British military aircraft in peace and war, including the exercise of any necessary operational control of air traffic; (g) to overfly the territory of the Republic of Cyprus without restriction; (h) to exercise jurisdiction over British forces to an extent comparable with that provided in Article VII of the Agreement regarding the Status of Forces of Parties to the North Atlantic Treaty, in respect of certain offences committed within the territory of the Republic of Cyprus; (i) to employ freely in the areas and sites labour from other parts of Cyprus; (j) to obtain, after consultation with the Government of the Republic of Cyprus, the use of such additional small sites and such additional rights as the United Kingdom may, from time to time, consider technically necessary for the efficient use of its base areas and installations in Cyprus. F. DECLARATION MADE BY THE GREEK AND TURKISH FOREIGN MINISTERS ON 17 FEBRUARY 1959 The Foreign Ministers of Greece and Turkey, having considered the declaration made by the Government of the United Kingdom on 17 February 1959, accept that declaration, together with the document approved by the Heads of the Greek and Turkish Governments in Zurich on 11 February 1959, as providing the agreed foundation for the final settlement of the problem of Cyprus. G. DECLARATION MADE BY THE REPRESENTATIVE OF THE GREEKCYPRIOT COMMUNITY ON 19 FEBRUARY 1959 Archbishop Makarios, representing the Greek Cypriot Community, having examined the documents concerning the establishment of the Republic of

38

The Republic of Cyprus Framework Cyprus drawn up and approved by the Heads of the Governments of Greece and Turkey in Zurich on 11 February 1959 and the declarations made by the Government of the United Kingdom, and by the Foreign Ministers of Greece and Turkey on 17 February 1959 declares that he accepts the documents and declarations as the agreed foundation for the final settlement of the problem of Cyprus. DECLARATION MADE BY THE REPRESENTATIVE OF THE TURKISHCYPRIOT COMMUNITY ON 19 FEBRUARY 1959 Dr Kutchuk, representing the Turkish Cypriot Community, having examined the documents concerning the establishment of the Republic of Cyprus drawn up and approved by the Heads of the Governments of Greece and Turkey in Zurich on 11 February 1959, and the declarations made by the Government of the United Kingdom, and by the Foreign Ministers of Greece and Turkey on 17 February 1959, declares that he accepts the documents and declarations as the agreed foundation for the final settlement of the problem of Cyprus.

10. Defence of Cyprus in the post-independence era Treaty of Guarantee between the Republic of Cyprus and Greece, the United Kingdom and Turkey The Republic of Cyprus of the one part, and Greece, the United Kingdom and Turkey of the other part: I.

Considering that the recognition and maintenance of the independence, territorial integrity and security of the Republic of Cyprus, as established and regulated by the basic articles of its Constitution, are in their common interest; II. Desiring to co-operate to ensure that the provisions of the aforesaid Constitution shall be respected: Have agreed as follows: ARTICLE 1 The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution. It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. With this intent it

39

Part I: Constitutional Issues prohibits all activity tending to promote directly or indirectly either union or partition of the Island. ARTICLE 2 Greece, the United Kingdom and Turkey, taking note of the undertakings by the Republic of Cyprus embodied in Article 1, recognize and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the provisions of the basic articles of its Constitution. They likewise undertake to prohibit, as far as lies within their power, all activity having the object of promoting directly or indirectly either the union of the Republic of Cyprus with any other State, or the partition of the Island. ARTICLE 3 In the event of any breach of the provisions of the present Treaty, Greece, the United Kingdom, and Turkey undertake to consult together, with a view to making representations, or taking the necessary steps to ensure observance of those provisions. In so far as common or concerted action may prove impossible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs established by the present Treaty. ARTICLE 4 The present Treaty shall enter into force on signature. The High Contracting Parties undertake to register the present Treaty at the earliest possible date with the Secretariat of the United Nations, in accordance with the provisions of Article 102 of the Chapter. E. A. -T.

F. R. Z. S. L.

A. M.

F. K.

Treaty of Alliance between the Republic of Cyprus, Greece and Turkey 1. The Republic of Cyprus, Greece and Turkey shall co-operate for their common defence and undertake by this Treaty to consult together on the problems raised by this defence. 2. The High Contracting Parties undertake to resist any attack or aggression, direct or indirect, directed against the independence and territorial integrity of the Republic of Cyprus. 3. In the spirit of this alliance and in order to fulfil the above purpose a tripartite Headquarters shall be established on the territory of the Republic of Cyprus. 4. Greece shall take part in the Headquarters mentioned in the preceding article with a contingent of 950 officers, non-commissioned officers and soldiers and Turkey with a contingent of 650 officers, non-commissioned

40

The Republic of Cyprus Framework officers and soldiers. The President and the Vice-President of the Republic of Cyprus, acting in agreement, may ask the Greek and Turkish Governments to increase or reduce the Greek and Turkish contingents. 5. The Greek and Turkish officers mentioned above shall be responsible for the training of the Army of the Republic of Cyprus. 6. The command of the tripartite Headquarters shall be assumed in rotation and for a period of one year each by a Cypriot, Greek and Turkish General Officer, who shall be nominated by the Governments of Greece and Turkey and by the President and the Vice-President of the Republic of Cyprus. E. A. -T.

F. R. Z. S. L.

A. M.

F. K.

11. Constitution of the Republic of Cyprus Part 1: General Provisions Part 2: Fundamental Rights and Liberties Part 3: The President of the Republic, The Vice-President of the Republic and the Council of Ministers Part 4: The House of Representatives Part 5: The Communal Chambers Part 6: The Independent officers of the Republic Part 7: The Public Service Part 8: The Forces of the Republic Part 9: The Supreme Constitutional Court Part 10: The High Court and the Subordinate Courts Part 11: Financial Provisions Part 12: Miscellaneous Provisions Part 13: Final Provisions Article 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. Article 2 For the purposes of this Constitution: (1) the Greek Community comprises all citizens of the Republic who are of Greek origin and whose mother tongue is Greek or who share the Greek cultural traditions or who are members of the Greek Orthodox Church; 41

Part I: Constitutional Issues (2) the Turkish Community comprises all citizens of the Republic who are of Turkish origin and whose mother tongue is Turkish or who share the Turkish cultural traditions or who are Moslems; (3) citizens of the Republic who do not come within the provisions of paragraph (1) or (2) of this Article shall, within three months of the date of the coming into operation of this Constitution, opt to belong to either the Greek or the Turkish Community as individuals, but, if they belong to a religious group, shall so opt as a religious group and upon such option they shall be deemed to be members of such Community: Provided that any citizen of the Republic who belongs to such a religious group may choose not to abide by the option of such group and by a written and signed declaration submitted within one month of the date of such option to the appropriate officer of the Republic and to the Presidents of the Greek and the Turkish Communal Chambers opt to belong to the Community other than that to which such group shall be deemed to belong: Provided further that if an option of such religious group is not accepted on the ground that its members are below the requisite number any member of such group may within one month of the date of the refusal of acceptance of such option opt in the aforesaid manner as an individual to which Community he would like to belong. For the purposes of this paragraph a ‘religious group’ means a group of persons ordinarily resident in Cyprus professing the same religion and either belonging to the same rite or being subject to the same jurisdiction thereof the number of whom, on the date of the coming into operation of this Constitution, exceeds one thousand out of which at least five hundred become on such date citizens of the Republic; (4) a person who becomes a citizen of the Republic at any time after three months of the date of the coming into operation of this Constitution shall exercise the option provided in paragraph (3) of this Article within three months of the date of his so becoming a citizen; (5) a Greek or a Turkish citizen of the Republic who comes within the provisions of paragraph (1) or (2) of this Article may cease to belong to the Community of which he is a member and belong to the other Community upon: (a) a written and signed declaration by such citizen to the effect that he desires such change, submitted to the appropriate officer of the Republic and to the Presidents of the Greek and the Turkish Communal Chambers; (b) the approval of the Communal Chamber of such other Community; (6) any individual or any religious group deemed to belong to either the Greek or the Turkish Community under the provisions of paragraph (3)

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The Republic of Cyprus Framework of this Article may cease to belong to such Community and be deemed to belong to the other Community upon: (a) a written and signed declaration by such individual or religious group to the effect that such change is desired, submitted to the appropriate officer of the Republic and to the Presidents of the Greek and the Turkish Communal Chambers; (b) the approval of the Communal Chamber of such other Community; (7) (a) a married woman shall belong to the Community to which her husband belongs. (b) a male or female child under the age of twenty-one who is not married shall belong to the Community to which his or her father belongs, or, if the father is unknown and he or she has not been adopted, to the Community to which his or her mother belongs. Article 3 1. The official languages of the Republic are Greek and Turkish. 2. Legislative, executive and administrative acts and documents shall be drawn up in both official languages and shall, where under the express provisions of this Constitution promulgation is required, be promulgated by publication in the official Gazette of the Republic in both official languages. 3. Administrative or other official documents addressed to a Greek or a Turk shall be drawn up in the Greek or the Turkish language respectively. 4. Judicial proceedings shall be conducted or made and judgements shall be drawn up in the Greek language if the parties are Greek, in the Turkish language if the parties are Turkish, and in both the Greek and Turkish languages if the parties are Greek and Turkish. The official language or languages to be used for such purposes in all other cases shall be specified by the Rules of Court made by the High Court under Article 163. 5. Any text in the official Gazette of the Republic shall be published in both official languages in the same issue. 6. (1) Any difference between the Greek and the Turkish texts of any legislative, executive or administrative act or document published in the official Gazette of the Republic, shall be resolved by a competent court. (2) The prevailing text of any law or decision of a Communal Chamber published in the official Gazette of the Republic shall be that of the language of the Communal Chamber concerned. (3) Where any difference arises between the Greek and the Turkish texts of an executive or administrative act or document which, though not published in the official Gazette of the Republic, has otherwise been published, a statement by the Minister or any other authority concerned

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Part I: Constitutional Issues as to which text should prevail or which should be the correct text shall be final and conclusive. (4) A competent court may grant such remedies as it may deem just in any case of a difference in the texts as aforesaid. 7. The two official languages shall be used on coins, currency notes and stamps. 8. Every person shall have the right to address himself to the authorities of the Republic in either of the official languages. Article 4 1. The Republic shall have its own flag of neutral design and colour, chosen jointly by the President and the Vice-President of the Republic. 2. The authorities of the Republic and any public corporation or public utility body created by or under the laws of the Republic shall fly the flag of the Republic and they shall have the right to fly on holidays together with the flag of the Republic both the Greek and the Turkish flags at the same time. 3. The Communal authorities and institutions shall have the right to fly on holidays together with the flag of the Republic either the Greek or the Turkish flag at the same time. 4. Any citizen of the Republic or any body, corporate or unincorporate other than public, whose members are citizens of the Republic, shall have the right to fly on their premises the flag of the Republic or the Greek or the Turkish flag without any restriction. Article 5 The Greek and the Turkish Communities shall have the right to celebrate respectively the Greek and the Turkish national holidays. Appendix D: Part 2 – Fundamental Rights and Liberties __________ Appendix D: Part 3 – The President of the Republic, The Vice-President of the Republic and the Council of Ministers Article 36 1. The President of the Republic is the Head of the State and takes precedence over all persons in the Republic. The Vice-President of the Republic is the Vice-Head of the State and takes precedence over all persons in the Republic next after the President of the Republic. Deputising for or replacing the President of the Republic in case of his temporary absence or temporary incapacity to perform his duties is made as provided in paragraph 2 of this Article.

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The Republic of Cyprus Framework 2. In the event of a temporary absence or a temporary incapacity to perform the duties of the President or of the Vice-President of the Republic, the President or the Vice-President of the House of Representatives and, in case of his absence or pending the filling of a vacancy in any such office, the Representative acting for him under Article 72 shall act for the President or the Vice-President of the Republic respectively during such temporary absence or temporary incapacity. Article 37 The President of the Republic as Head of the State: (a) represents the Republic in all its official functions; (b) signs the credentials of diplomatic envoys appointed under Article 54 and receives the credentials of foreign diplomatic envoys who shall be accredited to him; (c) signs: (i) the credentials of delegates appointed under Article 54 for the negotiation of international treaties, conventions or other agreements, or for signing any such treaties, conventions or agreements already negotiated, in accordance with, and subject to, the provisions of this Constitution; (ii) the letter relating to the transmission of the instruments of ratification of any international treaties, conventions or agreements approved as provided in this Constitution; (d) confers the honours of the Republic. Article 38 1. The Vice-President of the Republic as Vice-Head of the State has the right to: (a) be present at all official functions; (b) be present at the presentation of the credentials of the foreign diplomatic envoys; (c) recommend to the President of the Republic the conferment of honours of the Republic on members of the Turkish Community which recommendation the President shall accept unless there are grave reasons to the contrary. The honours so conferred will be presented to the recipient by the Vice-President if he so desires. 2. For the purposes of sub-paragraphs (a) and (b) of paragraph 1 of this Article, the necessary information shall be given to the Vice-President of the Republic in writing in sufficient time before any such event.

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Part I: Constitutional Issues Article 39 1. The election of the President and the Vice-President of the Republic shall be direct, by universal suffrage and secret ballot, and shall, except in the case of a by-election, take place on the same day but separately: Provided that in either case if there is only one candidate for election that candidate shall be declared as elected. 2. The candidate who receives more than fifty per cent of the votes validly cast shall be elected. If none of the candidates attains the required majority the election shall be repeated on the corresponding day of the week next following between the two candidates who received the greater number of the votes validly cast and the candidate who receives at such repeated election the greatest number of the votes validly cast shall be deemed to be elected. 3. If the election cannot take place on the date fixed under this Constitution owing to extraordinary and unforeseen circumstances such as earthquake, floods, general epidemic and the like, then such election shall take place on the corresponding day of the week next following. Article 40 A person shall be qualified to be a candidate for election as President or VicePresident of the Republic if at the time of election such person: (a) is a citizen of the Republic; (b) has attained the age of thirty-five years; (c) has not been, on or after the date of the coming into operation of this Constitution, convicted of an offence involving dishonesty or moral turpitude or is not under any disqualification imposed by a competent court for any electoral offence; (d) is not suffering from a mental disease incapacitating such person from acting as President or Vice-President of the Republic. Article 43 1. The President and the Vice-President of the Republic shall hold office for a period of five years commencing on the date of their investiture and shall continue to hold such office until the next elected President and Vice-President of the Republic are invested. 2. The President or the Vice-President of the Republic elected at a byelection under paragraph 4 of Article 44 shall hold office for the unexpired period of office of the President or the Vice-President of the Republic, as the case may be, whose vacancy he has been elected to fill. 3. The election of a new President and Vice-President of the Republic shall take place before the expiration of the five years’ period of office of the outgoing President and the outgoing Vice-President of the Republic so as to enable the newly-elected President and Vice-President of the Republic to be invested on the date such period expires. 46

The Republic of Cyprus Framework Article 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. Article 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: (a) determining the design and colour of the flag of the Republic as in Article 4 provided; (b) creation or establishment of the honours of the Republic, (c) appointment by an instrument signed by them both of the members of the Council of Ministers as in Article 46 provided; (d) promulgation by publication in the official Gazette of the Republic of the decisions of the Council of Ministers as in Article 57 provided; (e) promulgation by publication in the official Gazette of the Republic of any law or decision passed by the House of Representatives as in Article 52 provided; (f) appointments in Articles 112, 115, 118, 124, 126, 131, 133, 153 and 184 provided; termination of appointments as in Article 118 provided and of appointments made under Article 131; (g) institution of compulsory military service as in Article 129 provided; (h) reduction or increase of the security forces as in Article 130 provided; (i) exercise of the prerogative of mercy in capital cases where the injured party and the convicted person are members of different Communities as in Article 53 provided; remission, suspension and commutation of sentences as in Article 53 provided;

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Part I: Constitutional Issues (j) right of reference to the Supreme Constitutional Court as in Article 140 provided; (k) publication in the official Gazette of the Republic of decisions of the Supreme Constitutional Court as in Articles 137, 138, 139 and 143 provided; (l) replacement by a system of rotation of the system of appointment of a Turkish Minister to one of the three Ministries of Foreign Affairs or of Defence or of Finance as in Article 46 provided; (m) exercise of any of the powers specified in paragraphs (d), (e), (f) and (g) of Articles 48 and 49 and in Articles 50 and 51 which the President or the Vice-President of the Republic respectively can exercise separately; (n) address of messages to the House of Representatives as in Article 79 provided. Article 48 The executive power exercised by the President of the Republic consists of the following matters, that is to say: (a) designation and termination of appointment of Greek Ministers; (b) convening the meetings of the Council of Ministers as in Article provided, presiding at such meetings and taking part in the discussions thereat without any right to vote; (c) preparing the agenda of such meetings as in Article 56 provided; (d) right of final veto on decisions of the Council of Ministers concerning foreign affairs, defence or security as in Article 57 provided; (e) right of return of decisions of the Council of Ministers as in Article 57 provided; (f) right of final veto on laws or decisions of the House of Representatives concerning foreign affairs, defence or security as in Article 50 provided; (g) right of return of laws or decisions of the House of Representatives of the Budget as in Article 51 provided; (h) right of recourse to the Supreme Constitutional Court as in Article 137, 138 and 143 provided; (i) right of reference to the Supreme Constitutional Court as in Article 141 provided; (j) publication of the communal laws and decisions of the Greek Communal Chamber as in Article 104 provided; (k) right of reference to the Supreme Constitutional Court of any law decision of the Greek Communal Chamber as in Article 142 provide (l) right of recourse to the Supreme Constitutional Court in connection with any matter relating to any conflict or contest of power or competence arising between the House of Representatives and the Communal Chambers or any of them and between any organs of, or authorities in, the Republic as in Article 139 provided;

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The Republic of Cyprus Framework (m) the prerogative of mercy in capital cases as in Article 53 provided; (n) the exercise of any of the powers specified in Article 47 conjointly with the Vice-President of the Republic; (o) addressing messages to the House of Representatives as in Article 79 provided. Article 49 The executive power exercised by the Vice-President of the Republic consists of the following matters, that is to say: (a) designation and termination of appointment of Turkish Ministers; (b) asking the President of the Republic for the convening of the Council of Ministers as in Article 55 provided and being present and taking part in the discussions at all meetings of the Council of Ministers without any right to vote; (c) proposing to the President of the Republic subjects for inclusion in the agenda as in Article 56 provided; (d) right of final veto on decisions of the Council of Ministers concerning foreign affairs, defence or security as in Article 57 provided; (e) right of return of decisions of the Council of Ministers as in Article 57 provided; (f) right of final veto on laws or decisions of the House of Representatives concerning foreign affairs, defence or security as in, Article 50 provided; (g) right of return of laws or decisions of the House of Representatives or of the Budget as in Article 51 provided; (h) right of recourse to the Supreme Constitutional Court as in Articles 137, 138 and 143 provided; (i) right of reference to the Supreme Constitutional Court as in Article 141 provided; (j) publication of the communal laws and decisions of the Turkish Communal Chamber as in Article 104 provided; (k) right of reference to the Supreme Constitutional Court of any law or decision of the Turkish Communal Chamber as in Article 142 provided; (l) right of recourse to the Supreme Constitutional Court in connection with any matter relating to any conflict or contest of power or competence arising between the House of Representatives and the Communal Chambers or any of them and between any organs of, or authorities in, the Republic as in Article 139 provided; (m) the prerogative of mercy in capital cases as in Article 53 provided; (n) the exercise of any of the powers specified in Article 47 conjointly with the President of the Republic; (o) addressing messages to the House of Representatives as in Article 79 provided.

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Part I: Constitutional Issues Article 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

ii iii iv v vi

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; the conclusion of international treaties, conventions and agreements; the declaration of war and the conclusion of peace; the protection abroad of the citizens of the Republic and of their interests; the establishment, the status and the interests of aliens in the Republic; the acquisition of foreign nationality by citizens of the Republic and their acceptance of employment by, or their entering the service of, a foreign Government;

(b) the following questions of defence: i ii

composition and size of the armed forces and credits for them; (nominations des cadres – διορισμοί στελε÷ών – kadrolara tayinler) and their promotions (και η προαγωγή αυτών – ve bunlardaki terfiler); iii importation of war materials and also explosives of all kinds; iv cession of bases and other facilities to allied countries; (c) the following questions of security: (nominations des cadres – διορισμοί στελε÷ών – kadrolara tayinler) and their promotions (και η προαγωγή αυτών – ve bunlardaki terfiler); ii distribution and stationing of forces; iii emergency measures and martial law;

i

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The Republic of Cyprus Framework iv police laws. It is specified that the right of veto under sub-paragraph (c) above shall cover all emergency measures or decisions, but not those that concern the normal functioning of the police and the gendarmerie. 2. The above right of veto may be exercised either against the whole of a law or decision or against any part thereof, and in the latter case such law or decision shall be returned to the House of Representatives for a decision whether the remaining part thereof will be submitted, under the relevant provisions of this Constitution, for promulgation. 3. The right of veto under this Article shall be exercised within the period for the promulgation of laws or decisions of the House of Representatives as in Article 52 provided. Article 51 1. The President and the Vice-President of the Republic shall have the right, either separately or conjointly, to return any law or decision or any part thereof of the House of Representatives to the House for reconsideration. 2. On the adoption of the Budget by the House of Representatives the President and the Vice-President of the Republic, either separately or conjointly, may exercise his or their right to return it to the House of Representatives on the grounds that in his or their judgement there is a discrimination. 3. In case a law or decision or any part thereof is returned to the House of Representatives as in paragraph 1 of this Article provided, the House of Representatives shall pronounce on the matter so returned within fifteen days of such return and in the case of return of the Budget as in paragraph 2 of this Article provided the House of Representatives shall pronounce on the matter so returned within thirty days of such return. 4. If the House of Representatives persists in its decision the President and the Vice-President of the Republic shall, subject to the provisions of this Constitution, promulgate the law or decision or the Budget, as the case may be, within the time limit fixed for the promulgation of laws and decisions of the House of Representatives by publication of such law or decision or Budget in the official Gazette of the Republic. 5. Whenever the President or the Vice-President of the Republic exercises his right to return as provided in this Article he shall immediately notify the other of such return. 6. The right of return under this Article shall be exercised within the period for the promulgation of laws or decisions of the House of Representatives as in Article 52 provided.

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Part I: Constitutional Issues Article 52 The President and the Vice-President of the Republic shall, within fifteen days of the transmission to their respective offices of any law or decision of the House of Representatives, promulgate by publication in the official Gazette of the Republic such law or decision unless in the meantime they exercise, separately or conjointly, as the case may be, their right of veto as in Article 50 provided or their right of return as in Article 51 provided or their right of reference to the Supreme Constitutional Court as in Articles 140 and 141 provided or in the case of the Budget their right of recourse to the Supreme Constitutional Court as in Article 138 provided. Article 53 1. The President or the Vice-President of the Republic shall have the right to exercise the prerogative of mercy with regard to persons belonging to their respective Community who are condemned to death. 2. Where the person injured (βλάβεν πρόσωπον – zarar goren kimsemagdur) and the offender are members of different Communities such prerogative of mercy shall be exercised by agreement between the President and the Vice-President of the Republic; in the event of disagreement between the two the vote for clemency shall prevail. 3. In case the prerogative of mercy is exercised under paragraph 1 or 2 of this Article the death sentence shall be commuted to life imprisonment. 4. The President and the Vice-President of the Republic shall, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General of the Republic, remit, suspend, or commute any sentence passed by a court in the Republic in all other cases. Article 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; (c) defence and security, including questions thereof as in Article 50 set out; (d) the co-ordination and supervision of all public services; (e) the supervision and disposition of property belonging to the Republic in accordance with the provisions of this Constitution and the law; (f) consideration of Bills to be introduced to the House of Representatives by a Minister;

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The Republic of Cyprus Framework (g) making of any order or regulation for the carrying into effect of any law as provided by such law; (h) consideration of the Budget of the Republic to be introduced to the House of Representatives. Article 55 The President of the Republic convenes the meetings of the Council of Ministers. Such convening is made by the President of the Republic on his own motion or on being asked by the Vice-President of the Republic in due time for a specific subject. Article 56 The agenda of any meeting of the Council of Ministers is prepared by the President of the Republic at his discretion and is communicated to all concerned prior to such meeting. The Vice-President of the Republic may propose to the President any subject for inclusion in the agenda of any meeting. The President of the Republic shall include such subject in the agenda if it can conveniently be dealt with at such meeting, otherwise such subject shall be included in the agenda of the meeting next following. Article 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 VicePresident of the Republic respectively. 2. The President or the Vice-President of the Republic or both shall have the right of return, within four days of the date when the decision has been transmitted to their respective offices, of such decision to the Council of Ministers for reconsideration, whereupon the Council of Ministers shall reconsider the matter and if they persist in such decision the President and the Vice-President of the Republic shall, subject to paragraph 4 of this Article, promulgate by publication such decision: Provided that the exercise of the right of return shall not, in cases where the right of veto exists, prevent either the President or the Vice-President of the Republic or both from exercising the right of veto, within four days of the transmission to their respective offices, of the decision persisted upon. 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. 4. If the decision is enforceable and no right of veto or return has been exercised as in paragraph 2 or 3 of this Article provided, such decision

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Part I: Constitutional Issues shall be forthwith promulgated by the President and the Vice-President of the Republic by publication in the official Gazette of the Republic unless the Council of Ministers otherwise states in that decision. Article 58 1. A Minister is the Head of his Ministry. 2. Subject to the executive power expressly reserved, under this Constitution, to the President and the Vice-President of the Republic, acting either separately or conjointly, and to the Council of Ministers, the executive power exercised by each Minister includes the following matters: (a) the execution of laws relating to, and the administration of all matters and affairs usually falling within, the domain of his Ministry; (b) preparation of orders or regulations concerning his Ministry for submission to the Council of Ministers; (c) the issuing of directions and general instructions for the carrying out of the provisions of any law relating to his Ministry and of any order or regulation under such law; (d) the preparation for submission to the Council of Ministers of the part of the Budget of the Republic relating to his Ministry. Article 60 1. There shall be a Joint Secretariat of the Council of Ministers headed by two Secretaries, one belonging to the Greek Community and the other belonging to the Turkish Community, who shall be public officers. 2. The two Secretaries of the Joint Secretariat of the Council of Ministers shall have charge of the Council of Ministers’ Office and shall, in accordance with any instructions as may be given to them by the Council of Ministers, attend its meetings and keep the minutes thereof and convey the decision of the Council of Ministers to the appropriate organ or authority or person. Appendix D: Part 4 – The House of Representatives Article 61 The legislative power of the Republic shall be exercised by the House of Representatives in all matters except those expressly reserved to the Communal Chambers under this Constitution. Article 62 1. The number of Representatives shall be fifty: Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Represen-

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The Republic of Cyprus Framework tatives elected by the Greek Community and two-thirds of the Representatives elected by the Turkish Community. 2. Out of the number of Representatives provided in paragraph 1 of this Article 70 per cent shall be elected by the Greek Community and 30 per cent by the Turkish Community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. The proportion of Representatives stated in this paragraph shall be independent of any statistical data. Article 63 1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years and has such residential qualifications as may be prescribed by the Electoral Law shall have the right to be registered as an elector in either the Greek or the Turkish electoral list: Provided that the members of the Greek Community shall only be registered in the Greek electoral list and the members of the Turkish Community shall only be registered in the Turkish electoral list. 2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law. Article 64 A person shall be qualified to be a candidate for election as a Representative if at the time of the election that person: (a) is a citizen of the Republic; (b) has attained the age of twenty-five years; (c) has not been, on or after the date of the coming into operation of this Constitution, convicted of an offence involving dishonesty or moral turpitude or is not under any disqualification imposed by a competent court for any electoral offence; (d) is not suffering from a mental disease incapacitating such person from acting as a Representative. Article 65 1. The term of office of the House of Representatives shall be for a period of five years. The term of office of the first House of Representatives shall commence on the date of the coming into operation of this Constitution. 2. The outgoing House shall continue in office until the newly-elected House assumes office under paragraph 1 of this Article.

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Part I: Constitutional Issues Article 67 1. The House of Representatives may dissolve itself only by its own decision carried by an absolute majority including at least one-third of the Representatives elected by the Turkish Community. 2. Any such decision shall, notwithstanding anything contained in paragraph 1 of Article 65 and paragraph 1 of Article 66, provide for the date of the holding of the general election, which shall not be less than thirty days and not more than forty days from the date of such decision, and also for the date of the first meeting of the newly elected House which shall not be later than fifteen days after such general election and until such date the outgoing House shall continue to be in office. 3. Notwithstanding anything in paragraph I of Article 65 contained, the term of office of the House of Representatives to be elected after dissolution shall be for the unexpired period of the term of office of the dissolved House. In case of dissolution within the last year of the five years’ term of office, a general election for the House of Representatives shall take place both for the unexpired part of the term of office of the dissolved House, during which any session of the newly elected House shall be considered to be an extraordinary session, and for the subsequent five years’ term of office. Article 72 1. The President of the House of Representatives shall be a Greek, and shall be elected by the Representatives elected by the Greek Community, and the Vice-President shall be a Turk and shall be elected by the Representatives elected by the Turkish Community. Each shall be elected separately as above at the same meeting at the beginning and for the whole period of the term of office of the House of Representatives. 2. In case of any vacancy in either of the offices provided in paragraph 1 of this Article, an election as provided in such paragraph shall take place with all due speed and at an extraordinary session if necessary in order to fill such vacancy. 3. In case of temporary absence or pending the filling of a vacancy as provided in paragraph 2 of this Article in either of the offices of the President or the Vice-President of the House, their functions shall be performed by the eldest Representative of the respective Community unless the Representatives of such Community should otherwise decide. 4. In addition to the President and the Vice-President of the House there shall be appointed from amongst the Representatives and by the President and the Vice-President of the House respectively two Greek and one Turkish Clerks of the House and two Greek and one Turkish Administrative Clerks of the House who shall be attached respectively to the office of the President and the Vice-President of the House.

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The Republic of Cyprus Framework Article 73 1. Subject to the ensuing provisions of this Article, the House of Representatives by its Standing Orders regulates any matter of parliamentary procedure and of functions of its offices. 2. There shall be a Committee to be known as the Committee of Selection consisting of the President of the House as Chairman, the Vice-President of the House as Vice-Chairman and eight other members elected by the House of Representatives at its meeting after the election of the President and the Vice-President of the House, six from amongst the Representatives elected by the Greek Community and two from amongst the Representatives elected by the Turkish Community. 3. The Committee of Selection shall set up the Standing Committees and any other temporary, ad hoc or special Committee of the House of Representatives and shall appoint Representatives to be members thereof and in so doing due regard should be had to the proposals made by the Greek and the Turkish Communal groups or political party groups in the House for such setting up and appointments. The appointments to such Committees shall be subject to the provisions of the paragraph next following. 4. The Greek and the Turkish Communal groups and political party groups in the House of Representatives shall be adequately represented on each of the Standing, and of any other temporary, ad hoc or special, Committee of the House: Provided that the total number of the seats on such Committees distributed respectively to the Representatives elected by the Greek and the Turkish Communities shall be in the same proportion as that in which the seats in the House are distributed to the Representatives elected by the Greek and the Turkish Communities respectively. 5. Every Bill on being introduced in the House of Representatives shall be referred for debate in the first instance before the appropriate Committee. With the exception of those which are considered to be of an urgent nature, no Bill shall be debated by a Committee before the lapse of forty-eight hours after its being distributed to the Representatives constituting such a Committee. With the exception of those which are considered to be of an urgent nature, no Bill which has passed the Committee stage shall be debated in the House of Representatives before the lapse of forty-eight hours after it has been distributed to the Representatives together with the report of the Committee. 6. The agenda of the meetings of the House of Representatives, which shall include any additional subject proposed by the Vice-President of the House, shall be drawn up and presented to the House of Representatives by the President of the House.

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Part I: Constitutional Issues After the presentation of the agenda to the House of Representatives, any Representative may move any addition or amendment to such agenda, and such motion shall be decided upon by the House of Representatives. 7. No Representative can speak at any meeting of the House of Representatives unless he registers his name in the proper Register or unless he obtains the permission of the person presiding at such meeting. Every Representative who has complied with such formality is entitled to be given reasonably sufficient time, having regard to the particular subject, to speak and to be heard at the relevant meeting. The speeches shall be made in order of the registration or of oral request, as the case may be, of those who desire to speak: Provided that where there are opposite views held, a speaker shall, as far as practicable, follow another one who supports the opposite view. But Representatives speaking on behalf of the Committees or of the political party groups of the House of Representatives shall not be subject to such order of precedence. Representatives desiring to speak in connection with motions with regard to any matter relating to the agenda, the application of the Standing Orders or the closure of the debate shall be given precedence in time over the Representatives desiring to speak in connection with the subject of the debate, and in such a case two Representatives, one in favour and one against the motion, shall be allowed fifteen minutes each for their respective speeches. 8. All speeches in the House of Representatives shall be made from the rostrum of the House and addressed to the House of Representatives. All speeches and other proceedings in the House and at all the Committee meetings shall, simultaneously as they are being made or taking place, be translated from the official language in which they are being made or taking place into the other official language. 9. Save as otherwise provided in the Standing Orders, interruptions of the speech of a Representative or personal attacks against any Representative unconnected with the subject under debate, both in the House and at the Committee meetings, are prohibited. 10. The votes in the House of Representatives shall be jointly counted and recorded by one Greek and the Turkish Clerk of the House. 11. The minutes of the debates in the House of Representatives shall comprise all proceedings fully. The minutes of the proceedings of the Committees shall be kept in a summary form. Upon objection to the minutes of a meeting of the House of Representatives through the oral submission of a Representative at the first following meeting or by a written objection sent to the President of the

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The Republic of Cyprus Framework relevant meeting, the House of Representatives may decide to correct such minutes accordingly. 12. Any political party that is represented at least by twelve per cent of the total number of the Representatives in the House of Representatives can form and shall be entitled to be recognised as a political party group. Article 77 1. The quorum of the House of Representatives shall consist of at least onethird of the total number of its members. 2. The debate relating to any particular topic shall be adjourned once for twenty-four hours at the request of the majority of the Representatives of either Community who are present at a meeting. Article 78 1. The laws and the decisions of the House of Representatives shall be passed by a simple majority vote of the Representatives present and voting. 2. Any modification of the Electoral Law and the adoption of any law relating to the municipalities and of any law imposing duties or taxes shall require a separate simple majority of the Representatives elected by the Greek and the Turkish Communities respectively taking part in the vote. Article 82 A law or decision of the House of Representatives shall come into operation on its publication in the official Gazette of the Republic unless another date is provided by such law or decision. Article 83 1. Representatives shall not be liable to civil or criminal proceedings in respect of any statement made or vote given by them in the House of Representatives. 2. A Representative cannot, without the leave of the High Court, be prosecuted, arrested or imprisoned so long as he continues to be a Representative. Such leave is not required in the case of an offence punishable with death or imprisonment for five years or more in case the offender is taken in the act. In such a case the High Court being notified forthwith by the competent authority decides whether it should grant or refuse leave for the continuation of the prosecution or detention so long as he continues to be a Representative. 3. If the High Court refuses to grant leave for the prosecution of a Representative, the period during which the Representative cannot thus be prosecuted shall not be reckoned for the purposes of any period of prescription for the offence in question. 4. If the High Court refuses to grant leave for the enforcement of a sentence

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Part I: Constitutional Issues of imprisonment imposed on a Representative by a competent court, the enforcement of such sentence shall be postponed until he ceases to be a Representative. Appendix D: Part 5 – The Communal Chambers Article 86 The Greek and Turkish Communities respectively shall elect from amongst their own members a Communal Chamber which shall have the competence expressly reserved for it under the provisions of this Constitution. Article 87 1. The Communal Chambers shall, in relation to their respective Community, have competence to exercise within the limits of this Constitution and subject to paragraph 3 of this Article, legislative power solely with regard to the following matters: (a) (b) (c) (d)

(e)

(f)

(g)

(h)

all religious matters; all educational, cultural and teaching matters; personal status; the composition and instances (βαθμούς δικαιοδοσίας – dereceleri) of courts dealing with civil disputes relating to personal status and to religious matters; in matters where the interests and institutions are of a purely communal nature such as charitable and sporting foundations, bodies and associations created for the purpose of promoting the well-being of their respective Community; imposition of personal taxes and fees on members of their respective Community in order to provide for their respective needs and for the needs of bodies and institutions under their control as in Article 88 provided; in matters where subsidiary legislation in the form of regulations or bylaws within the framework of the laws relating to municipalities will be necessary to enable a Communal Chamber to promote the aims pursued by municipalities composed solely of members of its respective Community; in matters relating to the exercise of the authority of control of producers’ and consumers’ co-operatives and credit establishments and of supervision in their functions of municipalities consisting solely of their respective Community, vested in them by this Constitution:

Provided that: (i) any communal law, regulation, by-law or decision made or taken by a

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The Republic of Cyprus Framework Communal Chamber under this sub-paragraph (h) shall directly or indirectly be contrary to or inconsistent with any by which producers’ and consumers’ co-operatives and credit establishments are governed or to which the municipalities subject, (ii) nothing in paragraph (i) of this proviso contained shall be construed as enabling the House of Representatives to legislate on any matter relating to the exercise of the authority vested in Communal Chamber under this sub-paragraph (h): (i) in such other matters as are expressly provided by this Constitution. 2. Nothing in sub-paragraph (f) of paragraph 1 of this Article contained shall be construed as in any way curtailing the power of the House of Representatives to impose, in accordance with the provisions of this Constitution, any personal taxes. 3. Any law or decision of a Communal Chamber made or taken in exercise of the power vested in it under paragraph 1 of this Article shall not in any way contain anything contrary to the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or which is against the fundamental rights and liberties guaranteed by this Constitution to any person. Article 88 1. The power of imposing taxes under sub-paragraph (f) of paragraph 1 of Article 87 of a Communal Chamber shall be exercised for the purposes of meeting the part of its expenditure provided in its budget in each financial year that is not met by the payment made to such Communal Chamber in respect of such financial year by the Republic out of its Budget as provided in paragraph 2 of this Article or by any other revenue that such Chamber may have in that financial year. 2. The House of Representatives shall, in respect of each financial year, provide in the Budget and make available for payment to both Communal Chambers in respect of their respective financial year for the purposes of their respective needs relating to matters within their respective competence an amount not less than two million pounds to be allocated to the Greek and the Turkish Communal Chambers as follows: (a) to the Greek Communal Chamber an amount not less than the sum of one million and six hundred thousand pounds; and (b) to the Turkish Communal Chamber an amount not less than the sum of four hundred thousand pounds: Provided that in the case of the increase of the minimum total amount payable to both Communal Chambers the allocation to each of the Com-

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Part I: Constitutional Issues munal Chambers of such increased amount shall be made in such manner as the House of Representatives may decide. 3. If a Communal Chamber so requests the taxes imposed by it shall be collected on its behalf and paid to such a Communal Chamber by the authorities of the Republic. 4. For the purposes of this Article and of sub-paragraph (f) of paragraph 1 of Article 87 ‘member’ includes corporate and unincorporate bodies to the extent of the interest held in such bodies by such members. Article 89 1. The Communal Chambers shall, in relation to their respective Community, also have competence: (a) (i) to direct policy (‘determiner les principes directeurs’) within their communal laws; (ii) to exercise administrative powers in the manner and through such persons as may be provided by a communal law, with respect to any matter on which they are competent to exercise legislative power under the provisions of Article 87 other than those provided in sub-paragraphs (g) and (h) of paragraph 1 of such Article for which specific provision is made in the ensuing sub-paragraphs; (b) to exercise control on producers’ and consumers’ co-operatives and credit establishments created for the purpose of promoting well-being of their respective Community and which will be governed by the laws; (c) to promote the aims pursued by municipalities composed solely of members of their respective Community and to supervise – in their functions such municipalities to which the laws shall apply. 2. Nothing in sub-paragraph (e) of paragraph 1 of Article 87 and in subparagraph (b) of paragraph 1 of this Article contained shall be construed as precluding the creation of mixed and common institutions of the nature therein provided if the inhabitants so desire. 3. In the case where the central administration shall, on its part, proceed to control the institutions, establishments or municipalities mentioned in sub-paragraphs (b) and (c) of paragraph 1 of this Article by virtue of legislation in force, such control shall be carried out through public officers belonging to the same Community as that to which the institution, establishment or municipality in question belongs. Article 90 1. Subject to the ensuing provisions of this Article each Communal Chamber shall have power by or in its own communal laws to provide for the application (εφαρμογή – tatbik) of its laws and decisions.

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The Republic of Cyprus Framework 2. A Communal Chamber shall have no power to provide in any of its laws or decisions for imprisonment or detention for any violation thereof or failure to comply with any directions given by a Communal Chamber in exercise of any power vested in it under this Constitution. 3. The Communal Chambers shall have no competence to use measures of constraint (αναγκαστικά μέτρα – cebir) to secure compliance with their respective communal laws or decisions and of the judgements of the Courts dealing with civil disputes relating to personal status and to religious matters within their respective competence. 4. Where it becomes necessary to use measures of constraint in compelling compliance with any law or decision of a Communal Chamber or with any matter connected with the exercise of the authority of control or supervision by a Communal Chamber such measures of constraint shall, on the application by or on behalf of the Communal Chamber, be applied by the public authorities of the Republic which shall have exclusive competence to apply such measures of constraint. 5. The execution of any judgement or order of a court in connection with any matter within the exclusive competence of a Communal Chamber shall be carried out through the public authorities of the Republic. Article 91 1. Each Communal Chamber shall once yearly prepare and adopt a budget of its revenue and expenditure for the ensuing financial year. 2. Such budget shall be voted by the Communal Chamber not later than the day fixed by a communal law for the commencement of the communal financial year. Article 92 The number of the members of each Communal Chamber shall be determined by a communal law carried by a two-thirds majority of the total number of the members of the Communal Chamber concerned. Article 93 The elections for both the Communal Chambers shall be by universal suffrage and by direct and secret ballot. Article 94 1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years and has such residential qualifications as may be prescribed by the respective communal electoral law shall have the right to be registered as an elector in the respective communal electoral list: Provided that the members of the Greek Community shall only be registered

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Part I: Constitutional Issues in the Greek communal electoral list and the members of the Turkish Community shall only be registered in the Turkish communal electoral list. 2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the respective communal electoral law. Article 96 1. The term of office of the Communal Chambers shall be for a period of five years commencing on such date as a communal law respectively shall appoint. 2. The outgoing Communal Chambers shall continue in office until the newly elected Communal Chambers assume office under paragraph 1 of this Article. Article 98 1. Either Communal Chamber may dissolve itself only by its own decision carried by an absolute majority. 2. Any such decision shall, notwithstanding anything contained in paragraph 1 of Article 96 and paragraph 1 of Article 97, provide for the date of the holding of the communal general election with respect to the Communal Chamber in question which shall not be less than thirty days and not more than forty days from the date of such decision and also for the date of the first meeting of the newly-elected Communal Chamber which shall not be later than fifteen days after such communal general election and until such date as the outgoing Communal Chamber shall continue to be in office. 3. Notwithstanding anything contained in paragraph 1 of Article 96, the term of office of the Communal Chamber to be elected after dissolution shall be for the unexpired period of the term of office of the dissolved Communal Chamber. In case of dissolution within the last year of the five years’ term of office of the Communal Chamber concerned a communal general election for such Chamber shall take place for the unexpired part of the term of office of the dissolved Communal Chamber and for the subsequent five years’ period of office of such Communal Chamber. Article 101 1. The office of a member of a Communal Chamber shall be incompatible with that of a Minister or of a Representative or of a member of any municipal council including a Mayor or of a member of the armed or security forces of the Republic or with a public or municipal office and, in the case of that of a member of the Turkish Communal Chamber, with that of a religions functionary (din adami). 2. For the purposes of this Article ‘public office’ means any office of profit

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The Republic of Cyprus Framework in the public service of the Republic or of a Communal Chamber the emoluments of which are under the control either of the Republic or of a Communal Chamber and includes any office in any public corporation or public utility body. Article 103 1. The meetings of the Communal Chambers shall be open to the public and the minutes of its debates shall be published. 2. Any Communal Chamber may, if it thinks necessary, hold secret sessions on a resolution carried by a two-thirds majority vote of the total number of its members. Article 104 1. The laws or decisions passed by the Greek or the Turkish Communal Chamber shall be published in the official Gazette of the Republic immediately after being signed by the President or the Vice-President of the Republic respectively within fifteen days of the receipt by him of such laws or decisions. 2. A communal law shall come into operation on its publication in the official Gazette of the Republic unless another date is provided by such law. Article 105 1. The President of the Republic with regard to the Greek Communal Chamber and the Vice-President of the Republic with regard to the Turkish Communal Chamber may, within fifteen days of the receipt by him of any law or decision passed by the respective Communal Chamber, return such law or decision to such Chamber for reconsideration. 2. If the Communal Chamber concerned maintains that the law or decision so returned to it shall stand, the President or the VicePresident of the Republic, as the case may be, shall sign and publish such law or decision in accordance with the provisions of the immediately preceding Article. Article 108 1. The Greek and the Turkish Communities shall have the right to receive subsidies from the Greek or the Turkish Government respectively for institutions of education, culture, athletics and charity belonging to the Greek or the Turkish Community respectively. 2. Also where either the Greek or the Turkish Community considers that it has not the necessary number of schoolmasters, professors or clergymen (κληρικίο – din adami) for the functioning of its institutions, such Community shall have the right to obtain and employ such personnel to the extent strictly necessary to meet its needs as the Greek or the Turkish Government respectively may provide.

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Part I: Constitutional Issues Article 109 Each religious group which under the provisions of paragraph 3 of Article 2 has opted to belong to one of the Communities shall have the right to be represented by an elected member or members of such group, in the Communal Chamber of the Community to which such group has opted to belong as shall be provided by a relevant communal law. Article 110 1. The Autocephalous Greek Orthodox Church of Cyprus shall continue to have the exclusive right of regulating and administering its own internal affairs and property in accordance with the Holy Canons and its Charter in force for the time being and the Greek Communal Chamber shall not act inconsistently with such right. 2. The institution of Vakf and the Principles and Laws of, and relating to, Vakfs are recognised by this Constitution. All matters relating to or in any way affecting the institution or foundation of Vakf or the vakfs or any vakf properties, including properties belonging to Mosques and any other Moslem religious institution, shall be governed solely by and under the Laws and Principles of Vakfs (ahkamul evkaf) and the laws and regulations enacted or made by the Turkish Communal Chamber, and no legislative, executive or other act whatsoever shall contravene or override or interfere with such Laws or Principles of Vakfs and with such laws and regulations of the Turkish Communal Chamber. 3. Any right with regard to religious matters possessed in accordance with the law of the Colony of Cyprus in force immediately before the date of the coming into operation of this Constitution by the Church of a religious group to which the provisions of paragraph 3 of Article 2 shall apply shall continue to be so possessed by such Church on and after the date of the coming into operation of this Constitution. Article 111 1. Subject to the provisions of this Constitution any matter relating to betrothal, marriage, divorce, nullity of marriage, judicial separation or restitution of conjugal rights or to family relations other than legitimation by order of the court or adoption of members of the Greek Orthodox Church or of a religious group to which the provisions of paragraph 3 of Article 2 shall apply shall, on and after the date of the coming into operation of this Constitution, be governed by the law of the Greek Orthodox Church or of the Church of such religious group, as the case may be, and shall be cognizable by a tribunal of such Church and no Communal Chamber shall act inconsistently with the provisions of such law.

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The Republic of Cyprus Framework Appendix D: Part 6 – The Independent officers of the Republic Appendix D, Part 6 consists of the following chapters: Chapter 1: The Attorney-General of the Republic and the Deputy AttorneyGeneral of the Republic Chapter 2: The Auditor-General and the Deputy Auditor-General Chapter 3: The Governor and the Deputy Governor of the Issuing Bank of the Republic Appendix D: Part 6, Chapter 1 – The Attorney-General of the Republic and the Deputy Attorney-General of the Republic Article 112 1. The President and the Vice-President of the Republic shall appoint jointly two persons who are qualified for appointment as a judge of the High Court one to be the Attorney-General of the Republic and the other to be the Deputy Attorney-General of the Republic: Provided that the Attorney-General and the Deputy Attorney-General of the Republic shall not belong to the same Community. 2. The Attorney-General of the Republic shall be the Head and the Deputy Attorney-General of the Republic shall be the Deputy Head of the Law Office of the Republic which shall be an independent office and shall not be under any Ministry. 3. The Attorney-General and the Deputy Attorney-General of the Republic shall have the right of audience in, and shall take precedence over any other persons appearing before, any court: Provided that the Attorney-General of the Republic shall always take precedence over the Deputy Attorney-General of the Republic. 4. The Attorney-General and the Deputy Attorney-General of the Republic shall be members of the permanent legal service of the Republic and shall hold office under the same terms and conditions as a judge of the High Court other than its President and shall not be removed from office except on the like grounds and in the like manner as such judge of the High Court. 5. In all matters affecting persons belonging to the Community of the Attorney-General of the Republic or of the Deputy Attorney-General of the Republic, as the case may be, the one belonging to such Community shall be consulted by the other before any decision is taken by the Attorney-General of the Republic: Provided that for the prosecutions in the courts exercising criminal juris-

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Part I: Constitutional Issues diction composed of judges of one Community, the Attorney-General of the Republic or the Deputy Attorney-General of the Republic, as the case may be, belonging to that Community, shall have the effective charge and responsibility. Article 113 1. The Attorney-General of the Republic assisted by the Deputy Attorney General of the Republic shall be the legal adviser of the Republic and of the President and of the Vice-President of the Republic and of the Council of Ministers and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this Constitution or by law. 2. The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions. Article 114 1. The Deputy Attorney-General of the Republic shall have such powers and shall perform such duties as normally appertain to his office and also shall, subject to the directions of the Attorney-General of the Republic, exercise all the powers and perform all the functions and the duties vested in the Attorney-General of the Republic under the provisions of this Constitution or by law. 2. The Deputy Attorney-General of the Republic shall act for the AttorneyGeneral of the Republic in case of his absence or his temporary incapacity to perform his duties. Appendix D: Part 6, Chapter 2 – The Auditor-General and the Deputy Auditor-General Article 115 1. The President and the Vice-President of the Republic shall appoint jointly two fit and proper persons one to be the Auditor-General and the other to be the Deputy Auditor-General: Provided that the Auditor-General and the Deputy Auditor-General shall not belong to the same Community. 2. The Auditor-General shall be the Head and the Deputy Auditor General shall be the Deputy Head of the Audit Office of the Republic which shall be an independent office and shall not be under any Ministry.

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The Republic of Cyprus Framework 3. The Auditor-General and the Deputy Auditor-General shall be members of the permanent public service of the Republic and shall not be retired or removed from office except on the like grounds and in like manner as a judge of the High Court. Article 116 1. The Auditor-General assisted by the Deputy Auditor-General shall, on behalf of the Republic, control all disbursements and receipts and audit and inspect all accounts of moneys and other assets administered, and of liabilities incurred, by or under the authority of the Republic and for this purpose he shall have the right of access to all books, records and returns relating to such accounts and to places where such assets are kept. 2. The Auditor-General assisted by the Deputy Auditor-General shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by law. 3. The powers, functions and duties of the Auditor-General provided in this Chapter may be exercised by him in person or by such subordinate officers acting under and in accordance with his instructions. 4. The Auditor-General shall submit annually a report on the exercise of his functions and duties under this Chapter to the President and the VicePresident of the Republic who shall cause it to be laid before the House of Representatives. Article 117 1. The Deputy Auditor-General shall have such powers and shall perform such functions and duties as normally appertain to his office and also shall, subject to the directions of the Auditor-General, exercise all the powers and perform all the functions and duties vested in the AuditorGeneral under the provisions of this Constitution or by law. 2. The Deputy Auditor-General shall act for the Auditor-General in case of his absence or his temporary incapacity to perform his duties. Appendix D: Part 6, Chapter 3 – The Governor and the Deputy Governor of the Issuing Bank of the Republic Article 118 1. The President and the Vice-President of the Republic shall appoint jointly two fit and proper persons one to be the Governor and the other to be the Deputy-Governor of the Issuing Bank of the Republic: Provided that the Governor and the Deputy-Governor of the Issuing Bank of the Republic shall not belong to the same Community. 2. The Governor of the Issuing Bank of the Republic shall be the Head and 69

Part I: Constitutional Issues

3.

4.

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the Deputy-Governor of the Issuing Bank shall be the Deputy Head of the Issuing Bank of the Republic which shall not be under any Ministry. The Governor and the Deputy-Governor of the Issuing Bank of the Republic shall be either members of the permanent public service or shall be persons appointed under such terms and conditions as laid down in the instruments of their appointment. The President and the Vice-President of the Republic acting jointly may, at any time, terminate the appointment of either the Governor or the Deputy-Governor of the Issuing Bank of the Republic or both as such Governor or Deputy-Governor, as the case may be. In the case of such termination the Governor or the Deputy-Governor of the Issuing Bank of the Republic or both, as the case may be, shall, subject to paragraph 6 of this Article, and to the provisions of this Constitution relating to the public service of the Republic, be given other suitable post in the permanent public service of the Republic if such Governor or Deputy Governor was, immediately before such termination, a member of such service. Any disciplinary matter in connection with the exercise of the functions of the Governor and the Deputy-Governor of the Issuing Bank of the Republic shall be within the competence of the Council established under paragraph 8 of Article 153.

Article 119 1. The Governor of the Issuing Bank of the Republic assisted by the DeputyGovernor of the Issuing Bank of the Republic shall administer the currency laws of the Republic and shall be in charge of the management of the Issuing Bank of the Republic and shall exercise all other powers and perform all other functions and duties within the domain of the Issuing Bank of the Republic. 2. The Governor of the Issuing Bank of the Republic assisted by the DeputyGovernor of the Issuing Bank of the Republic shall exercise all such powers and shall perform all such other functions as are conferred or imposed on him by law. 3. The powers, functions and duties of the Governor of the Issuing Bank or the Republic provided in this Chapter may be exercised by him in person or by such subordinate officers acting under and in accordance with his instructions. 4. The Governor assisted by the Deputy-Governor of the Issuing Bank of the Republic shall, with regard to the financial policy relating to his office, carry out the decisions of the Council of Ministers in this respect and the provisions of any law and, with regard to the manner of the carrying out of such policy, he shall consult and be guided by the advice of the Minister of Finance. 5. The Governor of the Issuing Bank of the Republic shall submit half yearly

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The Republic of Cyprus Framework reports on the state of currency, funds and securities of the Republic to the President and the Vice-President of the Republic who shall cause such reports to be laid before the House of Representatives. Article 120 1. The Deputy-Governor of the Issuing Bank of the Republic shall have such powers and shall perform such functions and duties as normally appertain to his office and also shall, subject to the directions of the Governor of the Issuing Bank of the Republic, exercise all the powers and perform all the functions and duties vested in the Governor of the Issuing Bank of the Republic under the provisions of this Constitution or by law. 2. The Deputy-Governor of the Issuing Bank of the Republic shall act for the Governor of the Issuing Bank of the Republic in case of his absence or his temporary incapacity to perform his duties. Article 121 Nothing in this Chapter contained shall be construed as precluding the Issuing Bank of the Republic from becoming a Central Bank: Provided that in such a case, subject to the provisions of this Chapter, the Governor and the Deputy-Governor of the Issuing Bank of the Republic shall be respectively the Governor and the Deputy-Governor of the Central Bank of the Republic. Appendix D: Part 7 – The Public Service Appendix D, Part 7 consists of the following chapters: Chapter 1: General Chapter 2: The Accountant-General and the Deputy Accountant-General Appendix D: Part 7, Chapter 1 – General Article 122 For the purposes of this Chapter, unless the context otherwise requires ‘public office’ means an office in the public service; ‘public officer’ means the holder, whether substantive or temporary or acting, of a public office; ‘public service’ means any service under the Republic other than service in the army or the security forces of the Republic and includes service under the Cyprus Broadcasting Corporation, the Cyprus Inland Telecommunications Authority and the Electricity Authority of Cyprus and any other public corporate or unincorporate body created in the public interest by a law and either the funds of which are provided or guaranteed by the Republic or, if the enterprise is carried out exclusively by such body, its administration is carried out under the control of the Republic but does not include service in an office the appointment to or the filling of which is, under this Constitution, made jointly by the President and the Vice-President of the Republic 71

Part I: Constitutional Issues or service by workmen except those who are regularly employed in connection with permanent works of the Republic or any such body as aforesaid. Article 123 1. The public service shall be composed as to seventy per centum of Greeks and as to thirty per centum of Turks. 2. This quantitative distribution shall be applied, so far as this will be practically possible, in all grades of the hierarchy in the public service. 3. In regions or localities where one of the two Communities is in a majority approaching 100 per cent the public officers posted for, or entrusted with, duty in such regions or localities shall belong to that Community. Article 124 1. There shall be a Public Service Commission consisting of a Chairman and nine other members appointed jointly by the President and the VicePresident of the Republic. 2. Seven members of the Commission shall be Greeks and three members shall be Turks. 3. Each member of the Commission shall be appointed for a period of six years, but he may at any time resign his office by writing under his hand addressed to the President and the Vice-President of the Republic. 4. The remuneration and other conditions of service of a member of the Commission shall be provided by a law and shall not be altered to his disadvantage after his appointment. 5. A member of the Commission shall not be removed from office except on the like grounds and in the like manner as a judge of the High Court. 6. (1) No person shall be appointed as a member of the Commission unless he is a citizen of the Republic, of high moral character and has the qualifications for election as a member of the House of Representatives. (2) No person shall be appointed as, or be, a member of the Commission who is, or within the preceding twelve months in the case of the Chairman or six months in the case of any other member, has been – (a) a Minister; (b) a member of the House of Representatives or of any Communal Chamber; (c) a public officer or a member of any of the armed forces; (d) an officer or employee of any local authority or of a body corporate or authority established by law for public purposes; (e) a member of a trade union or of a body or association affiliated to a trade union. 7. Where, during any period, a member of the Commission has been granted leave of absence or is unable, owing to absence from the Republic, or to any other cause, to discharge his functions as a member, the President and the Vice-President of the Republic may jointly appoint at

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The Republic of Cyprus Framework his place any person who would be qualified to be appointed to exercise such functions, during that period. Appendix D: Part 8 – The Forces of the Republic Article 129 1. The Republic shall have an army of two thousand men of whom 60 per cent shall be Greeks and 40 per cent shall be Turks. 2. Compulsory military service shall not be instituted except by common agreement of the President and the Vice-President of the Republic. Article 130 1. The security forces of the Republic shall consist of the police and gendarmerie and shall have a contingent of two thousand men which may be reduced or increased by common agreement of the President and the Vice-President of the Republic. 2. The security forces of the Republic shall be composed as to 70 per cent of Greeks and as to 30 per cent of Turks: Provided that for an initial period and in order not to discharge those Turks serving in the police on 11 February 1959, except those serving in the auxiliary police, the percentage of Turks may be kept up to a maximum of 40 per cent and consequently that of the Greeks may be reduced to 60 per cent. Article 131 1. The Heads and Deputy Heads of the army, the police and the gendarmerie of the Republic shall be appointed jointly by the President and the Vice-President of the Republic. 2. One of the Heads of the army, the police and the gendarmerie shall be a Turk and where the Head of the army, the police and the gendarmerie belongs to one Community the Deputy Head shall belong to the other Community. Article 132 Forces that are stationed in parts of the territory of the Republic inhabited in a proportion approaching one hundred per cent only by members of one Community shall belong to that Community. Appendix D: Part 9 – The Supreme Constitutional Court Article 133 1. (1) There shall be a Supreme Constitutional Court of the Republic composed of a Greek, a Turk and a neutral judge. The neutral judge shall be the President of the Court.

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Part I: Constitutional Issues (2) The President and the other judges of the Supreme Constitutional Court shall be appointed jointly by the President and the Vice-President of the Republic: Provided that in the case of a vacancy solely in the post of either the Greek or the Turkish judge the proposal of the President or the Vice-President of the Republic to whose Community the judge to be appointed shall belong shall prevail if the President and the Vice-President of the Republic do not agree on the appointment within a week of such proposal. 2. The seat of the Supreme Constitutional Court shall be in the capital of the Republic. 3. The neutral judge shall not be a subject or a citizen of the Republic or of the Kingdom of Greece or of the Republic of Turkey or of the United Kingdom and the Colonies. 4. The Greek and the Turkish judge of the Supreme Constitutional Court shall be a citizen of the Republic. 5. The President and other judges of the Supreme Constitutional Court shall be appointed from among lawyers of high professional and moral standard. 6. (1) The President of the Court shall be appointed for a period of six years. 7. (1) The Greek and the Turkish judge of the Court shall be permanent members of the judicial service of the Republic and shall hold office until they attain the age of sixty-eight. Article 137 1. The President and the Vice-President of the Republic, either separately or conjointly, shall have a right of recourse to the Supreme Constitutional Court under the provisions of this Article on the ground that any law or decision of the House of Representatives or any provision thereof discriminates against either of the two Communities. 2. A recourse under paragraph 1 of this Article shall be made within seventy-five days of the promulgation of any such law or decision. 3. Notice of the filing of such a recourse shall be published in the official Gazette of the Republic by the President and the Vice-President of the Republic within a period of twenty-four hours from such filing. Upon the publication of such notification in the official Gazette of the Republic the operation of such law or decision shall be suspended from the day following such publication until the Supreme Constitutional Court determines such recourse. 4. Upon such recourse the Court may confirm or annul such law or decision or any provision thereof or return it to the House of Representatives for reconsideration, in whole or in part:

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The Republic of Cyprus Framework Provided that in the case of annulment of a law or decision or any provision thereof such annulment shall operate from the date of the publication of the decision of the Supreme Constitutional Court under paragraph 5 of this Article without prejudice to anything done or left undone under such law or decision or provision thereof. 5. The decision of the Court shall be notified forthwith to the President and the Vice-President of the Republic and to the President and the VicePresident of the House of Representatives and shall be published forthwith by the President and the Vice-President of the Republic in the official Gazette of the Republic. Article 138 1. Where on the adoption of the Budget by the House of Representatives the President and the Vice-President of the Republic, either separately or conjointly, has or have exercised his or their right to return it to the House of Representatives on the ground that in his or their judgement there is a discrimination and the House has persisted in its decision, the President and the Vice-President of the Republic, either separately or conjointly, as the case may be, shall have a right of recourse to the Supreme Constitutional Court on such ground. 2. Such recourse shall be made within the period fixed by this Constitution for the promulgation of the laws or decisions of the House of Representatives. 3. Upon such a recourse the Court may annul or confirm the Budget or return it to the House of Representatives, in whole or in part. 4. The decision of the Court shall be notified forthwith to the President and the Vice-President of the Republic and to the President and the VicePresident of the House of Representatives and shall be published forthwith by the President and the Vice-President of the Republic in the official Gazette of the Republic. Article 139 1. The Supreme Constitutional Court shall have jurisdiction to adjudicate finally on a recourse made in connection with any matter relating to any conflict or contest of power or competence arising between the House of Representatives and the Communal Chambers or any one of them and between any organs of, or authorities in, the Republic: Provided that nothing in this paragraph contained shall apply to any conflict or contest between any courts or judicial authorities in the Republic, which conflict or contest shall be decided by the High Court. For the purposes of this paragraph the expression ‘courts or judicial authorities in the Republic’ does not include the Supreme Constitutional Court.

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Part I: Constitutional Issues 2. Where any question arises as to the competence of the Supreme Constitutional Court regarding any matter, such question shall be determined by the Supreme Constitutional Court. 3. Recourse to the Court under paragraph 1 of this Article may be made by:

4. 5.

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(a) the President or the Vice-President of the Republic; (b) the House of Representatives; or (c) one of, or both the Communal Chambers; or (d) any other organ of, or authority in, the Republic, if involved in such conflict or contest. Such recourse shall be made within thirty days of the date when such power or competence is contested. Upon such a recourse the Court may declare that the law or the decision or the act, the subject or the recourse, is void, either from the time when the conflict or contest arose or ab initio, and without any legal effect whatsoever, either in whole or in part, on the ground that such law or decision or act was made or taken or done without power or competence, and in either case the Court may give directions as to the effect of anything done or left undone under such law or decision or act. Any decision of the Court upon such recourse shall be forthwith notified to the parties concerned and to the President and the Vice-President of the Republic who shall forthwith publish it in the official Gazette of the Republic. Upon a recourse under this Article the Court may order that the operation of the law or decision or act, as the case may be, which is the subject matter of such recourse, shall be suspended until the determination of the recourse; such order shall be published forthwith in the official Gazette of the Republic.

Article 140 1. The President and the Vice-President of the Republic acting jointly may, at any time prior to the promulgation of any law or decision of the House of Representatives, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any specified provision thereof is repugnant to or inconsistent with any provision of this Constitution, otherwise than on the ground that such law or decision or any provision thereof discriminates against either of the two Communities. 2. The Supreme Constitutional Court shall consider every question referred to it under paragraph 1 of this Article and having heard arguments on behalf of the President and the Vice-President of the Republic and on behalf of the House of Representatives shall give its opinion on such question and notify the President and the Vice-President of the Republic and the House of Representatives accordingly.

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The Republic of Cyprus Framework 3. In case the Supreme Constitutional Court is of the opinion that such law or decision or any provision thereof is repugnant to or inconsistent with any provision of this Constitution such law or decision or such provision thereof shall not be promulgated by the President and the Vice-President of the Republic. Article 142 1. The President of the Republic with regard to any law or decision of the Greek Communal Chamber and the Vice-President of the Republic with regard to any law or decision of the Turkish Communal Chamber, may, at any time prior to the publication of such law or decision, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any specified provision thereof is repugnant to or inconsistent with any provision of this Constitution. 2. The Supreme Constitutional Court shall consider every question referred to it under paragraph 1 of this Article and having heard arguments on behalf of the President or the Vice-President of the Republic, as the case may be, and on behalf of the Communal Chamber concerned, shall give its opinion on such question and notify accordingly the President or the Vice-President of the Republic, as the case may be, and the Communal Chamber concerned. 3. In case the Supreme Constitutional Court is of the opinion that such law or decision or any provision thereof is repugnant to or inconsistent with any provision of this Constitution such law or decision or such provision thereof shall not be published by the President or the Vice-President of the Republic, as the case may be. Article 143 1. The President or the Vice-President of the Republic or Representatives consisting of at least one-fifth of the total number of a newly-elected House of Representatives shall have a right of recourse to the Supreme Constitutional Court on the question whether there exist such urgent and exceptional unforeseen circumstances as to justify a House of Representatives which continues to be in office until the assumption of office of a newly-elected House to make any laws or take any decisions as in Article 68 provided. 2. Such recourse, if made by the President or the Vice-President of the Republic shall be made within the period provided by this Constitution for the promulgation of the laws and decisions of the House of Representatives and if made by such Representatives shall be made within fifteen days of the date when the new House first meets. 3. The decision of the Court shall be notified forthwith to the President and the Vice-President of the Republic and to the President and the VicePresident of the House of Representatives and shall be published forth-

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Part I: Constitutional Issues with by the President and the Vice-President of the Republic in the official Gazette of the Republic. Article 147 The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a motion made by the Attorney-General and the Deputy Attorney-General of the Republic, in accordance with the provisions of paragraph 3 of Article 44, with regard to the question of the existence of such permanent or temporary incapacity, or absence, otherwise than temporary, of the President or the Vice-President of the Republic, as would prevent him to perform effectively his duties as in sub-paragraph (d) of paragraph 1 of Article 44 provided. Article 148 Subject to the provisions of paragraph 3 of Article 144, any decision of the Supreme Constitutional Court on any matter within its jurisdiction or competence shall be binding on all courts, organs, authorities and persons in the Republic. Article 149 The Supreme Constitutional Court shall have exclusive jurisdiction: (a) to determine any conflict between the two texts of this Constitution by reference to the text of the draft of this Constitution signed at Nicosia on 6 April 1960, in the Joint Constitutional Commission together with the schedule of amendments thereto signed on* by representatives of the Kingdom of Greece, the Republic of Turkey and the Greek and Turkish Cypriot communities, due regard being had to the letter and spirit of the Zurich Agreement dated 11 February 1959, and of the London Agreement dated 19 February 1959; (b) to make, in case of ambiguity, any interpretation of this Constitution due regard being had to the letter and spirit of the Zurich Agreement dated the 11th February, 1959, and of the London Agreement dated the 19 February 1959. Appendix D: Part 10 – The High Court and the Subordinate Courts Article 152 1. The judicial power, other than that exercised under Part IX by the Supreme Constitutional Court and under paragraph 2 of this Article by the courts provided by a communal law, shall be exercised by a High Court of Justice and such inferior courts as may, subject to the provisions of this Constitution, be provided by a law made thereunder. 2. The judicial power with respect to civil disputes relating to personal

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The Republic of Cyprus Framework status and to religious matters which are reserved under Article 87 for the Communal Chambers shall be exercised by such courts as a communal law made under the provisions of this Constitution shall provide. Article 153 1. (1) There shall be a High Court of Justice composed of two Greek judges, one Turkish judge and a neutral judge. The neutral judge shall be the President of the Court and shall have two votes. (2) The President and the other judges of the High Court shall be appointed jointly by the President and the Vice-President of the Republic: Provided that in the case of a vacancy solely in the post of either a Greek judge or the Turkish judge the proposal of the President or the VicePresident of the Republic to whose Community the judge to be appointed shall belong shall prevail if the President and the Vice-President of the Republic do not agree on the appointment within a week of such proposal. 2. The seat of the High Court shall be in the capital of the Republic. 3. The neutral judge shall not be a subject or a citizen of the Republic or of the Kingdom of Greece or of the Republic of Turkey or of the United Kingdom and the Colonies. 4. The Greek judges and the Turkish judge of the High Court shall be citizens of the Republic. 5. The President and the other judges of the High Court shall be appointed from amongst lawyers of high professional and moral standard. 6. (1) The President of the High Court shall be appointed for a period of six years. (2) The remuneration and other conditions of service of the President of the High Court shall be laid down in the instrument of his appointment. (3) The conditions of service of the President of the High Court to be laid down in the instrument of his appointment as provided in sub-paragraph (2) of this paragraph shall include: (a) provision for his retirement on the same grounds as those on which a Greek or the Turkish judge may be retired under sub-paragraph (3) of paragraph 7 of this Article; and (b) provision for his dismissal on the same grounds as those on which such Greek or Turkish judge may be dismissed under sub-paragraph (4) of paragraph 7 of this Article. 7. (1) The Greek judges and the Turkish judge of the High Court shall be permanent members of the judicial service of the Republic and shall hold office until they attain the age of sixty-eight. (2) Without prejudice to any retirement pension, gratuity or any other like benefit he may have acquired under the provisions of any law, any Greek judge or the Turkish judge of the High Court may at any time

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Part I: Constitutional Issues resign his office by writing under his hand addressed to the President and the Vice-President of the Republic. (3) Any Greek or the Turkish judge of the High Court shall be retired on account of such mental or physical incapacity or infirmity as would render him incapable of discharging the duties of his office either permanently or for such period of time as would render it impracticable for him to continue in office. A judge so retired shall be entitled to all benefits and emoluments provided by any law in force for the time being. (4) A Greek or the Turkish judge of the High Court may be dismissed on the ground of misconduct. 8. (1) There shall be established a Council consisting of the President of the Supreme Constitutional Court as Chairman and the Greek and the Turkish judge of the Supreme Constitutional Court as members. (2) This Council shall have exclusive competence to determine all matters relating to – (a) the retirement, dismissal or otherwise the termination of the appointment of the President of the High Court in accordance with the conditions of service laid down in the instrument of his appointment; (b) the retirement or dismissal of any Greek judge or the Turkish judge of the High Court on any of the grounds provided in sub-paragraphs (3) and (4) of paragraph 7 of this Article. (3) The proceedings of the Council under sub-paragraph (2) of this paragraph shall be of a judicial nature and the judge concerned shall be entitled to be heard and present his case before the Council. (4) The decision of the Council taken by a majority shall be binding upon the President and the Vice-President of the Republic who shall jointly act accordingly. 9. In the case of temporary absence or incapacity of the President of the High Court or of one of the Greek judges or of the Turkish judge thereof the President of the Supreme Constitutional Court or the Greek judge or the Turkish judge thereof respectively shall act in his place during such temporary absence or incapacity: Provided that if it is impracticable or inconvenient for the Greek or the Turkish judge of the Supreme Constitutional Court to act, the senior in office Greek or Turkish judge in the judicial service of the Republic shall so act respectively. 10. No action shall be brought against the President or any other judge of the High Court for any act done or words spoken in his judicial capacity. 11. The remuneration and other conditions of service of the Greek judges and of the Turkish judge of the High Court shall be fixed by a law. 12. The remuneration and other conditions of service of any judge of the High Court shall not be altered to his disadvantage after his appointment.

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The Republic of Cyprus Framework Article 155 1. The High Court shall be the highest appellate court in the Republic and shall have jurisdiction to hear and determine, subject to the provisions of this Constitution and of any Rules of Court made thereunder, all appeals from any court other than the Supreme Constitutional Court. 2. Subject to paragraphs 3 and 4 of this Article the High Court shall have such original and revisional jurisdiction as is provided by this Constitution or as may be provided by a law: Provided that where original jurisdiction is so conferred, such jurisdiction shall, subject to Article 159, be exercised by such judge or judges of the High Court as the High Court shall determine: Provided further that there shall be a right of appeal to the High Court from their decision. 3. The High Court shall, to the exclusion of any other court, determine the composition of the court that is to try a civil case where the plaintiff and the defendant belong to different Communities and of the court that is to try a criminal case in which the accused and the injured party belong to different Communities. Such court shall be composed of judges belonging to both the Greek and the Turkish Communities. 4. The High Court shall have exclusive jurisdiction to issue orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Article 156 The following offences in the first instance shall be tried by a court composed of such judges belonging to both Communities as the High Court shall determine presided over by the President of the High Court: (a) treason and other offences against the security of the Republic; (b) offences against the Constitution and the constitutional order: Provided that in the appeal from any decision of such court the High Court shall be presided over by the President of the Supreme Constitutional Court in the place of the President of the High Court and in such a case the President of the Supreme Constitutional Court shall have all the powers vested in the President of the High Court. Article 159 1. A court exercising civil jurisdiction in a case where the plaintiff and the defendant belong to the same Community shall be composed solely of a judge or judges belonging to that Community. 2. A court exercising criminal jurisdiction in a case where the accused and the person injured belong to the same Community, or where there is no

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3.

4.

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person injured, shall be composed of a judge or judges belonging to that Community. Where in a civil case the plaintiff and the defendant belong to different Communities the court shall be composed of such judges belonging to both Communities as the High Court shall determine. Where in a criminal case the accused and the person injured belong to different Communities the court shall be composed of such judges belonging to both Communities as the High Court shall determine. A coroner’s inquest where the deceased belonged to the Greek Community shall be conducted by a Greek coroner and where the deceased belonged to the Turkish Community shall be conducted by a Turkish coroner. In case there are more than one deceased belonging to different Communities the inquest shall be conducted by such coroner as the High Court may direct. The execution of any judgement or order of a court exercising civil or criminal jurisdiction, if the court is composed of a Greek judge or Greek judges shall be carried out through Greek officers of the court, if the court is composed of a Turkish judge or Turkish judges shall be carried out through Turkish officers of the court, and in any other case such execution shall be carried out by such officers as the court of trial shall direct.

Article 160 1. A communal law made by the Communal Chamber concerned shall, subject to the provisions of this Constitution, provide for the establishment, composition and jurisdiction of courts to deal with civil disputes relating to personal status and to religious matters that are reserved for the competence of the Communal Chambers by the provisions of this Constitution. 2. By such law provision shall be made for appeals against the decisions of such courts and for the composition of the courts by which such appeals are to be heard and determined and for the jurisdiction and powers of such appellate courts. A communal law made under this paragraph may provide that such appellate court may be composed of a judge or judges of the High Court either sitting alone or with such other judge or judges in the judicial service of the Republic as such law may determine. 3. Any such court as aforesaid in the exercise of its jurisdiction, shall apply the laws made by the Communal Chamber concerned: Provided that nothing in this paragraph contained shall preclude a court of the Republic from applying in a case, where an issue relating to personal status or to religious matters is raised incidentally, the relevant communal law.

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The Republic of Cyprus Framework Article 162 The High Court shall have jurisdiction to punish for any contempt of itself, and any other court of the Republic, including a court established by a communal law under Article 160, shall have power to commit any person disobeying a judgement or order of such court to prison until such person complies with such judgement or order and in any event for a period not exceeding twelve months. A law or a communal law, notwithstanding anything in Article 90 contained, as the case may be, may provide for punishment for contempt of court. Appendix D: Part 12 – Miscellaneous Provisions Article 169 Subject to the provisions of Article 50 and paragraph 3 of Article 57: (1) every international agreement with a foreign State or any International Organisation relating to commercial matters, economic co-operation (including payments and credit) and modus vivendi shall be concluded under a decision of the Council of Ministers; (2) any other treaty, convention or international agreement shall be negotiated and signed under a decision of the Council of Ministers and shall only be operative and binding on the Republic when approved by a law made by the House of Representatives whereupon it shall be concluded; (3) treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto. Article 170 1. The Republic shall, by agreement on appropriate terms’ accord mostfavoured-nation treatment to the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland for all agreements whatever their nature might be. 2. The provisions of paragraph 1 of this Article shall not apply to the Treaty concerning the Establishment of the Republic of Cyprus between the Republic, the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland concerning the bases and military facilities accorded to the United Kingdom. Article 171 1. In sound and vision broadcasting there shall be programmes both for the Greek and the Turkish Communities. 2. The time allotted to programmes for the Turkish Community in sound

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Part I: Constitutional Issues broadcasting shall not be less than seventy-five hours in a seven-day week, spread to all days of such week in daily normal periods of transmission: Provided that if the total period of transmissions has to be reduced so that the time allotted to programmes for the Greek Community should fall below seventy-five hours in a seven-day week, then the time allotted to programmes for the Turkish Community in any such week should be reduced by the same number of hours as that by which the time allotted to programmes for the Greek Community is reduced below such hours: Provided further that if the time allotted to programmes for the Greek Community is increased above one hundred and forty hours in a seven-day week, then the time allotted to programmes for the Turkish Community shall be increased in the ratio of three hours for the Turkish Community to every seven hours for the Greek Community. 3. In vision broadcasting there shall be allotted three transmission days to the programmes for the Turkish Community of every ten consecutive transmission days and the total time allotted to the programmes for the Turkish Community in such ten transmission days shall be in the ratio of three hours to seven hours allotted to programmes for the Greek Community in such ten transmission days. 4. All official broadcasts in sound and vision shall be made both in Greek and Turkish and shall not be taken into account for the purposes of calculating the time under this Article.

Article 173 1. Separate municipalities shall be created in the five largest towns of the Republic, that is to say, Nicosia, Limassol, Famagusta, Larnaca and Paphos by the Turkish inhabitants thereof: Provided that the President and the Vice-President of the Republic shall within four years of the date of the coming into operation of this Constitution examine the question whether or not this separation of municipalities in the aforesaid towns shall continue. 2. The council of the Greek municipality in any such town shall be elected by the Greek electors of the town and the council of the Turkish municipality in such town shall be elected by the Turkish electors of the town. 3. In each such town a co-ordinating body shall be set up composed of two members chosen by the council of the Greek municipality, two members chosen by the council of the Turkish municipality and a President chosen by agreement between the two councils of such municipalities in such

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The Republic of Cyprus Framework town. Such co-ordinating body shall provide for work which needs to be carried out jointly, shall carry out joint services entrusted to it by agreement of the councils of the two municipalities within the town and shall concern itself with matters that require a degree of co-operation. Article 174 Within the limits of any such town no municipal tax, rate, fee or any other revenue shall be imposed or levied upon or collected from any person by any such municipality unless such person belongs to the same Community as the municipality concerned: Provided that: (a) fees payable in connection with the use of municipal markets, slaughter houses and other municipal places which are in the region within which the council of one of such municipalities in any such town exercises its jurisdiction; (b) entertainment fees payable in connection with premises or places in the region within which the council of one of such municipalities in any such town exercises its jurisdiction; (c) such fees as may be agreed upon between the two councils of such municipalities in any such town for any services additional to, or in excess of, those usually rendered by a municipality, to a person not belonging to the Community thereof, shall be paid to the council of such municipality: Provided further that in case any service in the way of control, inspection and the like is rendered by one of the municipalities to a person belonging to the Community of the other municipality in any such town any fees in respect thereof shall be payable to the municipality rendering such service. Article 175 No licence or permit shall be issued to any person by a municipality in any such town not belonging to the Community of such municipality: Provided that licences or permits relating to premises, places or building operations in the region within which one of such municipalities in any such town exercises its jurisdiction shall be issued by the council of such municipality and any service, control or supervision in connection with such licences or permits shall be performed by the council of such municipality and any such fee payable in respect thereof shall be collected by such council. Article 176 Nothing in Articles 173 to 178, both inclusive, contained shall be construed as precluding a law to provide for town planning with respect to any such municipalities subject to the following conditions:

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Part I: Constitutional Issues (a) the planning authority for any such town shall consist of ten members, out of whom seven shall be Greeks and three shall be Turks; (b) all decisions of such authority shall be taken by an absolute majority: Provided that no decision affecting a Greek municipality shall be taken unless such majority includes the votes of at least four Greek members, and no decision affecting a Turkish municipality shall be taken unless such majority includes the votes of at least two Turkish members; (c) all matters of a town planning nature affecting any such town and any regulation of any such matter shall be entrusted exclusively to such planning authority. Article 177 Subject to the provisions of Articles 173 to 178, both inclusive, each municipality in any such town shall exercise its jurisdiction and perform all its functions respectively within a region the limits of which shall be fixed for each municipality by agreement of the President and the Vice-President of the Republic. Article 178 With regard to other localities, a special provision shall be made for the constitution of the organs of the municipalities in accordance, as far as possible, with the rule of proportional representation of the two Communities. Appendix D: Part 13 – Final Provisions Article 180 1. The Greek and the Turkish texts of this Constitution shall both be originals and shall have the same authenticity and the same legal force. 2. Any conflict between the two texts of this Constitution shall be determined by the Supreme Constitutional Court by reference to the text of the draft of this Constitution signed at Nicosia on 6 April 1960, in the Joint Constitutional Commission together with the Schedule of amendments thereto signed on* by representatives of the Kingdom of Greece, the Republic of Turkey and the Greek and Turkish Cypriot communities, due regard being had to the letter and spirit of the Zurich Agreement dated the 11 February 1959, and of the London Agreement dated 19 February 1959. 3. In case of ambiguity any interpretation of the Constitution shall be made by the Supreme Constitutional Court due regard being had to the letter and spirit of the Zurich Agreement dated 11 February 1959, and of the London Agreement dated 19 February 1959.

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The Republic of Cyprus Framework * Date to be inserted later. Article 181 The Treaty guaranteeing the independence, territorial integrity and Constitution of the Republic concluded between the Republic, the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland, and the Treaty of Military Alliance concluded between the Republic, the Kingdom of Greece and the Republic of Turkey, copies of which are annexed to this Constitution as Annexes I and IΙ, shall have constitutional force. Article 182 1. The Articles or parts of Articles of this Constitution set out in Annex III hereto which have been incorporated from the Zurich Agreement dated 11 February, 1959, are the basic Articles of this Constitution and cannot, in any way, be amended, whether by way of variation, addition or repeal. 2. Subject to paragraph 1 of this Article any provision of this Constitution may be amended, whether by way of variation, addition or repeal, as provided in paragraph 3 of this Article. 3. Such amendment shall be made by a law passed by a majority vote comprising at least two-thirds of the total number of the Representatives belonging to the Greek Community and at least two-thirds of the total number of the Representatives belonging to the Turkish Community. Article 185 1. The territory of the Republic is one and indivisible. 2. The integral or partial union of Cyprus with any other State or the separatist independence is excluded.

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THE BLOODBATH BEGINS ___________________________________________

12. President Makarios’s 13 points, 30 November 1963 On 30 November 1963, Archbishop Makarios presented the following proposals to Dr Fazil Kutchuk, the then Turkish Cypriot Vice-President with the aim of amending certain provisions of the 1960 Constitution. Greek Cypriot historians claim that the proposal’s goal was to make an unworkable constitutional system more workable. Dr Kutchuk ultimately rejected them in toto believing that their implementation would turn Cyprus into a de facto Greek Cypriot Republic. 1. The right of veto of the President and the Vice-President of the Republic to be abolished. 2. The Vice-President of the Republic to deputise for or replace the President of the Republic in case of his temporary absence or incapacity to perform his duties. In consequence, therefore, all the constitutional provisions in respect of joint action by the President and the VicePresident of the Republic to be modified accordingly. 3. The Greek President of the House of Representatives and its Turkish Vice-President to be elected by the House as a whole and not as at present the President by the Greek Members of the House and the VicePresident by the Turkish Members of the House. 4. The Vice-President of the House of Representatives to deputise for or replace the President of the House in case of his temporary absence or incapacity to perform his duties. 5. The constitutional provisions regarding separate majority for enactment of Laws by the House of Representatives to be abolished. 6. The constitutional provision regarding the establishment of separate Municipalities in the five main towns to be abolished. Provision should be made so that: (a) The Municipal Council in each of the aforesaid five towns shall consist of Greek and Turkish Councillors in proportion to

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7.

8.

9.

10.

11. 12.

13.

the number of the Greek and Turkish inhabitants of such town by whom they shall be elected respectively. (b) In the Budget of each of such aforesaid towns, after deducting any expenditure required for common services, a percentage of the balance proportionate to the number of the Turkish inhabitants of such town shall be earmarked and disposed of in accordance with the wishes of the Turkish Councillors. The constitutional provision regarding Courts consisting of Greek Judges to try Greeks and of Turkish Judges to try Turks and of mixed Courts consisting of Greek and Turkish Judges to try cases where the litigants are Greeks and Turks to be abolished. The division of the Security Forces into Police and Gendarmerie to be abolished, (Provision to be made in case the Head of the Police is a Greek the Deputy Head to be a Turk and vice versa). The numerical strength of the Security Forces and of the Army to be determined by Law and not by agreement between the President and the Vice-President of the Republic. The proportion of the participation of Greek and Turkish Cypriots in the composition of the Public Service and of the Forces of the Republic, i.e. the Police and the Army, to be modified in proportion to the ratio of the population of Greek and Turkish Cypriots. The number of the members of the Public Service Commission to be reduced from ten to either five or seven. All the decisions of the Public Service Commission to be taken by simple majority. If there is an allegation of discrimination on the unanimous request either of the Greek or of the Turkish members of the Commission, its Chairman to be bound to refer the matter to the Supreme Constitutional Court. The Greek Communal Chamber to be abolished.

13. The Akritas Plan (1963) Published in the Greek Cypriot newspaper PATRIS on 21 April 1963. It was alleged to have been one of the main catalysts for the bicommunal conflict that began on 21 December 1963 and lasted until 20 July 1974. The recent public statements of His Beatitude have outlined the course that our national issue will follow. As we have stressed in the past, national struggles are neither judged nor solved from day to day, nor is it possible to fix time limits for the achievement of the various stages of their development. Our national cause must always be examined and judged in the light of the conditions and developments of the moment, and the measures that will be taken, the tactics and the time of implementing each 90

The Bloodbath Begins measure must be determined by the conditions existing at the time, both internationally, and internally. The entire effort is trying and must necessarily pass through various stages, because the factors that influence the final result are many and varied. It is sufficient, however, that all should understand that the measures that are prescribed now constitute only the first step, one simple stage towards the final and unalterable national objective, that is to the full and unfettered exercise of the right to selfdetermination of the people. Since the purpose is unalterable, what remains is to examine the subject of tactics. It is necessary to divide the subject of tactics into two headings, namely external and internal tactics, for in each case both the presentation and the handling of our cause will be different. A. External tactics (international). During the recent stages of our national struggle the Cyprus problem has been presented to diplomatic circles as a demand for the exercise of the right to self-determination by the people of Cyprus. In securing the right to self-determination obstacles have been created by the well-known conditions, the existence of a Turkish minority, by the intercommunal conflict and the attempts to show that coexistence of both communities under one government was impossible. Finally, for many international circles the problem was solved by the London and Zurich Agreements, a solution that was presented as the result of negotiations and agreement between the two sides. a) Consequently, our first target has been to cultivate internationally the impression that the Cyprus problem has not really been solved and the solution requires revision. b) Our first objective was our endeavour to be vindicated as the Greek majority and to create the impression that: (i) The solution given is neither satisfactory nor fair; (ii) The agreement reached was not the result of a free and voluntary acceptance of a compromise of the conflicting views; (iii) That the revision of the agreements constitutes a compelling need for survival, and not an effort of the Greeks to repudiate their signature; (iv) That the coexistence of the two communities is possible, and (v) That the strong element on which foreign states ought to rely is the Greek majority and not the Turkish Cypriots. c) All the above has required very much effort, and has been achieved to a satisfactory degree. Most of the foreign representatives have been convinced that the solution given was neither fair nor satisfactory, that it was signed under pressure and without real negotiations and that it was imposed under various threats. It is significant that the solution achieved has not been ratified by the people because our leadership, acting wisely,

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Part I: Constitutional Issues avoided calling the people to ratify it by a plebiscite, which the people, in the 1959 spirit, would have done if called upon. Generally, it has been established that the administration of Cyprus up to now has been carried out by the Greeks and that the Turks have confined themselves to a negative role. d) Second objective. The first stage having been completed, we must programme the second stage of our activities and objectives on the international level. These objectives in general can be outlined as follows: (i) The Greek efforts are directed towards removing unreasonable and unfair provisions of administration and not to oppress the Turkish Cypriots; (ii) The removal of these oppressive provisions must take place now because tomorrow will be too late; (iii) The removal of these provisions, despite the fact that this is reasonable and necessary, because of the unreasonable attitude of the Turks is not possible by agreement, and therefore unilateral action is justified; (iv) The issue of revision is an internal affair of the Cypriots and does not give the right of military or other intervention; (v) The proposed amendments are reasonable, just, and safeguard the reasonable rights of the minority. e) Today it has been generally demonstrated that the international climate is against every type of oppression and, more specifically, against the oppression of minorities. The Turks have already succeeded in persuading international opinion that union of Cyprus with Greece amounts to an attempt to enslave them. Further, it is estimated that we have better chances of succeeding in our efforts to influence international public opinion in our favour if we present our demand, as we did during the struggle, as a demand to exercise the right of self-determination, rather than as a demand for union with Greece (Enosis). In order, however, to secure the exercise of complete and free self-determination, we must get free of all those provisions of the constitution and of the agreements (Treaty of Guarantee, Treaty of Alliance) which prevent the free and unfettered expression and implementation of the wishes of our people and which create dangers of external intervention. It is for this reason that the first target of attack has been the Treaty of Guarantee, which was the first that was stated to be no longer recognised by the Greek Cypriots. When this is achieved no legal or moral power can prevent us from deciding our future alone and freely and exercising the right of self-determination by a plebiscite. From the above, the conclusion can be drawn that for the success of our plan a chain of action is needed, each of which is necessary, otherwise, future actions will remain legally unjustified and politically unachieved, while at the

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The Bloodbath Begins same time we will expose our people and the country to serious consequences. The actions to be taken can be summed up as follows: a) Amendment of the negative elements of the agreements and parallel abandonment of the Treaties of Guarantee and Alliance. This step is necessary because the need for amendments of the negative aspects of the treaties is generally accepted internationally and is considered justified (we can even justify unilateral action), while at the same time intervention from outside to prevent us amending them is unjustified and inapplicable; b) As a result of our above actions, the Treaty of Guarantee (right of unilateral intervention) becomes legally and substantively inapplicable; c) Once Cyprus is not bound by the restrictions of the Treaties of Guarantee and Alliance regarding the exercise of the right to self-determination, the people will be able to give expression to and implement their desire. d) Legal confrontation by the forces of State of every internal or external intervention. It is therefore obvious that if we hope to have any chance of success internationally in our above actions, we cannot and must not reveal or declare the various stages of the struggle before the previous one is completed. For instance, if it is accepted that the above four stages are necessary, then it is unthinkable to speak of amendments in stage (a) if stage (d) is revealed. How can it be possible to aim at the amendment of the negative aspects of the constitution by arguing that this is necessary for the functioning of the State if stage (d) is revealed? The above relate to targets, aims and tactics in the international field. And now on the internal front: B. Internal Front. 1. The only danger that could be described as insurmountable is the possibility of external intervention, by force, not so much because of the material damage, nor because of the danger itself (which, in the last analysis, it is possible for us to deal with partly or totally by force), but mainly because of the possible political consequences. Intervention is threatened or implemented before stage (c), then such intervention would be legally debatable, if not justified. This fact has a lot of weight both internationally and in the United Nations. From the history of many recent instances we have learnt that in not a single case of intervention, whether legally justified or not, has either the United Nations or any other power succeeded in evicting the invader without serious concessions detrimental to the victim. Even in the case of the Israeli attack against Suez, which was condemned by almost all nations, and on which Soviet intervention was threatened, Israel withdrew, but received as a

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Part I: Constitutional Issues concession the port of Eilat on the Red Sea. Naturally, more serious dangers exist for Cyprus. If, on the other hand, we consider and justify our action under (a) above well, on the one hand, intervention is not justified and, on the other, it cannot be carried out before consultations between the guarantors Greece, Turkey and the UK. It is at this stage of consultations (before intervention) that we need international support. We shall have it if the proposed amendments by us appear reasonable and justifiable. Hence, the first objective is to avoid intervention by the choice of the amendments we would request in the first stage. Tactics: We shall attempt to justify unilateral action for constitutional amendments once the efforts for a common agreement are excluded. As this stage the provisions in (ii) and (iii) are applicable in parallel. 2. It is obvious that in order to justify intervention, a more serious reason must exist and a more immediate danger than a simple constitutional amendment. Such a reason could be an immediate declaration of enosis before stages (a)– (c) or serious intercommunal violence, which would be presented as massacres of the Turks. Reason (a) has already been dealt with in the first part and, consequently, it remains only to consider the danger of intercommunal violence. Since we do not intend, without provocation, to attack or kill Turks, the possibility remains that the Turkish Cypriots, as soon as we proceed to the unilateral amendment of any article of the constitution, will react instinctively, creating incidents and clashes or stage, under orders, killings, atrocities or bomb attacks on Turks, in order to create the impression that the Greeks have indeed attacked the Turks, in which case intervention would be justified, for their protection. Tactics. Our actions for constitutional amendments will be in the open and we will always appear ready for peaceful negotiations. Our actions will not be of a provocative or violent nature. Should clashes occur, they will be dealt with in the initial stages legally by the legally established security forces, in accordance with a plan. All actions will be clothed in legal form. 3. Before the right of unilateral amendments of the constitution is established, decisions and actions that require positive violent acts, such as, for example, the use of force to unify the separate municipalities, must be avoided. Such a decision compels the Government to intervene by force to bring about the unification of municipal properties, which will probably compel the Turks to react violently. On the contrary, it is easier for us, using legal methods, to amend, for instance, the provision of the 70 to

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The Bloodbath Begins 30 ratio in the public service, when it is the Turks who will have to take positive violent action, while for us this procedure will not amount to action, but to a refusal to act (to implement). The same applies to the issue of the separate majorities with regard to taxation legislation. These measures have already been considered and a series of similar measures have been chosen for implementation. Once our right of unilateral amendments to the constitution is established de facto by such actions, then we shall be able to advance using our judgement and our strength more decidedly. 4. It is, however, naive to believe that it is possible to proceed to substantive acts of amendment of the constitution, as a first step of our general plan, as has been described above, without the Turks attempting to create or to stage violent clashes. For this reason, the existence of our organisation is an imperative necessity because: a) In the event of instinctive violent Turkish reactions, if our counterattacks are not immediate, we run the risk effacing panic in the Greeks in the towns and thus losing substantial vital areas, while, on the other hand, an immediate show of our strength may bring the Turks to their senses and confine their actions to sporadic insignificant acts, and b) In the event of a planned or staged Turkish attack, it is imperative to overcome it by force in the shortest possible time, because if we succeed in gaining command of the situation (in one or two days), no outside, intervention would be either justified or possible. c) In either of the above cases, effective use of force in dealing with the Turks will facilitate to a great extent our subsequent actions for further amendments. It would then be possible for unilateral amendments to be made, without any Turkish reaction, because they will know that their reaction will be weak or seriously harmful for their community, and d) In the event of the clashes becoming more general we must be ready to proceed with the actions described in (a) to (b), including the immediate declaration of Enosis, because then there would be neither reason to wait nor room for diplomatic action. 5. At no stage should we neglect the need to enlighten, and to face the propaganda and the reactions of those who cannot or should not know our plans. It has been shown that our struggle must pass through four stages and that we must not reveal publicly and at improper times our plans and intentions. Complete secrecy is more than a national duty. IT IS A VITAL NECESSITY FOR SURVIVAL AND SUCCESS This will not prevent the reactionaries and the irresponsible demagogues from indulging in an orgy of exploitation of patriotism and provocations. The

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Part I: Constitutional Issues plan provides them with fertile ground, because it gives them the opportunity to allege that the efforts of the leadership are confined to the objective of constitutional amendments and not to pure national objectives. Our task becomes more difficult because by necessity, and depending on the prevailing circumstances, even the constitutional amendments must be made in stages. However, all this must not draw us into irresponsible demagogy nor to bidding higher in the stakes of nationalism. Our acts will be our most truthful defenders. In any event, because the above task must make substantial progress and yield results long before the next elections, for obvious reasons, in the relatively short time in between we must show selfrestraint and remain cool. At the same time, however, we must not only maintain the present unity and discipline of the patriotic forces, but increase it. This can only be done by the necessary briefing of our members and through them of our people. In the first instance, we must uncover what the reactionaries stand for. Some of them are opportunist and irresponsible, as their recent past has shown. They are negative and aimless reactionaries who fanatically oppose our leadership, but without at the same time offering a substantive and practical solution. We need a steady and strong government in order to promote our plans up to the last moment. These opponents are verbalists and sloganists, but unwilling to proceed to concrete acts or to suffer sacrifices. For example, even at the present stage they offer nothing more concrete than recourse to the United Nations, that is, words again without cost to themselves. They must, therefore, be isolated. In parallel, we shall brief our members only ORALLY about our intentions. Our sub-headquarters must, in gatherings of our members, analyse and explain fully and continuously the above, until each one of our members understands fully and is in a position to brief others. NO WRITTEN REPORT IS PERMITTED. THE LOSS OF ANY DOCUMENT ON THE ABOVE AMOUNTS TO TREASON AGAINST THE NATION No act can damage our struggle as vitally and decisively as the revealing of the present document or its publication by our opponents. With the exception of word-of-mouth briefing, all our other actions, namely publications in the Press, resolutions, and so forth, must be very restrained and no mention of the above should be made. Similarly, in public speeches and gatherings, only responsible persons may make, under the personal responsibility of the Leader or Deputy Leaders, references in general terms to the plan. They must also have the authorisation of either the Leader or the Deputy Leader who must approve the text. ON NO ACCOUNT ARE REFERENCES IN THE PRESS OR ANY OTHER PUBLICATION PERMITTED. Tactics. Complete briefing of our people and of the public by word of mouth. Publicly we shall endeavour to appear as moderates. Projection of or reference to our plans in the Press or in writing is strictly prohibited. Officials

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The Bloodbath Begins and other responsible persons will continue to brief and to raise the morale and the desire for the struggle of our people, but such briefing excludes making our plans public knowledge by the Press or otherwise. NOTES: This document will be destroyed by fire on the personal responsibility of the Leader and the Deputy Leader in the presence of all the members of the General Staff within ten days from its receipt. Copies or part copies are prohibited: members of the staff of the Office of the Deputy Leader may have copies on the personal responsibility of the Leader, but may not remove them from the Office of the Deputy Leader. The Leader AKRITAS.

14. The Johnson letter of 5 June 1964 Following the events of December 1963, Turkey threatened to use force on Cyprus territory on various occasions. Following some aerial bombardments, the Turkish army got very close to sending troops by June 1964. Yet, Ismet Inönü – the then Turkish Prime Minister – was secretly aware that the Turkish army did not have the military capability to launch a full-scale invasion of the island. While ordering military preparations, he simultaneously informed Lyndon Johnson of the Turkish invasion plans. He hoped that the US President would then intervene diplomatically to stop any Turkish intervention, while pressurizing the Greek side to halt attacks against the Turkish Cypriot population. In this way, Inonu was hoping to hit two birds with one stone: (1) avoiding a potentially humiliating military disaster; and (2) reminding the other side of the deterrent capability of the Turkish army. In the end, he received a very arrogant reply from the US President and the contents of that letter created strong anti-American feeling among Turkish public opinion throughout the 1960s and 1970s. Inönü wrote a reply on 13 June 1964, although Johnson’s letter pointed out most of the things he feared. In his letter he started by criticizing both the wording and the content of Johnson’s letter and went on with the legitimate right of Turkey, given by the Treaty of Guarantee, to stop the violation. Then he criticized the main principles of NATO and said that if NATO’s structure was so weak as to give credit to the aggressor’s allegations, then it meant that this defect of NATO needed to be remedied. Inonu’s relations with the US administration did not recover after that date either. In February 1965, Inönü’s government was toppled in the Turkish Parliament and Suleyman Demirel, a politician with strong links to the US government and business circles, came to power. In 1967, Turkey issued another threat to intervene militarily. On that occasion, Greece felt pressurized to withdraw 20,000 troops sent to Cyprus in breach of the 1960 Treaty of Guarantee.

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Part I: Constitutional Issues TELEGRAM FROM THE DEPARTMENT OF STATE TO THE EMBASSY IN TURKEY CONTAINING MESSAGE FROM PRESIDENT LYNDON B. JOHNSON WITH INSTRUCTIONS TO DELIVER IT TO PRESIDENT ISMET INÖNÜ 2

1296. Deliver Inonu soonest following message from President Dear Mr Prime Minister:

I am gravely concerned by the information which I have had through Ambassador Hare from you and your Foreign Minister that the Turkish Government is contemplating a decision to intervene by military force to occupy a portion of Cyprus. I wish to emphasize, in the fullest friendship and frankness, that I do not consider that such a course of action by Turkey, fraught with such far-reaching consequences, is consistent with the commitment of your Government to consult fully in advance with us. Ambassador Hare has indicated that you have postponed your decision for a few hours in order to obtain my views. I put to you personally whether you really believe that it is appropriate for your Government, in effect, to present an ultimatum to an ally who has demonstrated such staunch support over the years as has the United States for Turkey. I must, therefore, first urge you to accept the responsibility for complete consultation with the United States before any such action is taken. It is my impression that you believe that such intervention by Turkey is permissible under the provisions of the Treaty of Guarantee of 1960. I must call your attention, however, to our understanding that the proposed intervention by Turkey would be for the purpose of supporting an attempt by Turkish Cypriot leaders to partition the island, a solution which is specifically excluded by the Treaty of Guarantee. Further, that Treaty requires consultation among the Guarantor Powers. It is the view of the United States that the possibilities of such consultation have by no means been exhausted in this situation and that, therefore, the reservation of the right to take unilateral action is not yet applicable. I must call to your attention, also, Mr Prime Minister, the obligations of NATO. There can be no question in your mind that a Turkish intervention in Cyprus would lead to a military engagement between Turkish and Greek forces. Secretary of State Rusk declared at the recent meeting of the Ministerial Council of NATO in The Hague that war between Turkey and Greece must be considered as ‘literally unthinkable’. Adhesion to NATO, in its very essence, means that NATO countries will not wage war on each other. Germany and France have buried centuries of animosity and hostility in becoming 98

The Bloodbath Begins NATO allies; nothing less can be expected from Greece and Turkey. Furthermore, a military intervention in Cyprus by Turkey could lead to a direct involvement by the Soviet Union. I hope you will understand that your NATO Allies have not had a chance to consider whether they have an obligation to protect Turkey against the Soviet Union if Turkey takes a step which results in Soviet intervention without the full consent and understanding of its NATO Allies. Further, Mr Prime Minister, I am concerned about the obligations of Turkey as a member of the United Nations. The United Nations has provided forces on the Island to keep the peace. Their task has been difficult but, during the past several weeks, they have been progressively successful in reducing the incidents of violence on that Island. The United Nations Mediator has not yet completed his work. I have no doubt that the general membership of the United Nations would react in the strongest terms to unilateral action by Turkey which would defy the efforts of the United Nations and destroy any prospect that the United Nations could assist in obtaining a reasonable and peaceful settlement of this difficult problem. I wish also, Mr Prime Minister, to call your attention to the bilateral agreement between the United States and Turkey in the field of military assistance. Under Article IV of the Agreement with Turkey of July 1947, your Government is required to obtain United States consent for the use of military assistance for purposes other than those 3 for which such assistance was furnished. Your Government has on several occasions acknowledged to the United States that you fully understand this condition. I must tell you in all candor that the United States cannot agree to the use of any United States supplied military equipment for a Turkish intervention in Cyprus under present circumstances. Moving to the practical results of the contemplated Turkish move, I feel obligated to call to your attention in the most friendly fashion the fact that such a Turkish move could lead to the slaughter of tens of thousands of Turkish Cypriots on the island of Cyprus. Such an action on your part would unleash the furies and there is no way by which military action on your part could be sufficiently effective to prevent wholesale destruction of many of those whom you are trying to protect. The presence of United Nations forces could not prevent such a catastrophe. You may consider that what I have said is much too severe and that we are disregardful of Turkish interests in the Cyprus situation. I should like to assure you that this is not the case. We have exerted ourselves both publicly and privately to assure the safety of Turkish Cypriots and to insist that a final solution of the Cyprus problem should rest upon the consent of the parties most directly concerned. It

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Part I: Constitutional Issues is possible that you feel in Ankara that the United States has not been sufficiently active on your behalf. But surely you know that our policy has caused the liveliest resentments in Athens (where demonstrations have been aimed against us) and has led to a basic alienation between the United States and Archbishop Makarios. As I said to your Foreign Minister in our conversation just a few weeks ago, we value very highly our relations with Turkey. We have considered you as a great ally with fundamental common interests. Your security and prosperity have been a deep concern of the American people and we have expressed that concern in the most practical terms. You and we have fought together to resist the ambitions of the communist world revolution. This solidarity has meant a great deal to us and I would hope that it means a great deal to your Government and to your people. We have no intention of lending any support to any solution of Cyprus which endangers the Turkish Cypriot community. We have not been able to find a final solution because this is, admittedly, one of the most complex problems on earth. But I wish to assure you that we have been deeply concerned about the interests of Turkey and of the Turkish Cypriots and will remain so. Finally, Mr Prime Minister I must tell you that you have posed the gravest issues of war and peace. These are issues which go far beyond the bilateral relations between Turkey and the United States. They not only will certainly involve war between Turkey and Greece but could involve wider hostilities because of the unpredictable consequences which a unilateral intervention in Cyprus could produce. You have your responsibilities as Chief of the Government of Turkey; I also have mine as President of the United States. I must, therefore, inform you in the deepest friendship that unless I can have your assurance that you will not take such action without further and fullest consultation I cannot accept your injunction to Ambassador Hare of secrecy and must immediately ask for emergency meetings of the NATO Council and of the United Nations Security Council. I wish it were possible for us to have a personal discussion of this situation. Unfortunately, because of the special circumstances of our present Constitutional position, I am not able to leave the United States. If you could come here for a full discussion I would welcome it. I do feel that you and I carry a very heavy responsibility for the general peace and for the possibilities of a sane and peaceful resolution of the Cyprus problem. I ask you, therefore, to delay any decisions which you and your colleagues might have in mind until you and I have had the fullest and frankest consultation.

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15. The doctrine of necessity and Greek Cypriot justifications for certain departures from the 1960 Constitution Attorney-General of the Republic v Mustafa Ibrahim and others [1964] CLR 195 The true nature of the events that took place in the island is still being disputed. While Turkish historians argue that between 21 December 1963 and 20 July 1974 the Greek Cypriot authorities embarked on a programme of ethnic cleansing of the Turkish Cypriots based on the so-called Akritas Plan, the Greeks argue that in the relevant period there was a state of revolt, namely armed rebellion and insurrection against the established Government of the Republic by some Turkish Cypriots led by the TMT (Türk Mukavemet Teșkilatı) organization. Whatever the nature of the events was, the bi-communal partnership envisaged in the 1960 Constitution as being necessary for running the key organs of the state effectively ended with the start of the armed conflict from December 1963 onwards. In the following case, a chamber of the Supreme Court consisting entirely of Greek Cypriot judges justify their jurisdiction to hear the case and the suspension/inapplicability of certain key provisions of the 1960 Constitution based on the ‘doctrine of necessity’ invoked by the ‘government’ of the Republic of Cyprus. SUMMARY: The accused persons in question are Turkish Cypriots and they are charged with offences of preparing war or warlike undertaking and of using armed force against the Government, contrary to sections 40 and 41 of the Criminal Code, Cap. 154. Before the hearing on the merits of these appeals, counsel for respondents raised the following preliminary objections: (1) that this court, as constituted, had no jurisdiction to hear the appeals as the provisions of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33 of 1964), setting up a Supreme Court, were contrary to the Constitution, that is to say (a) section 3 (1) and (2) was contrary to the provisions of Article 153.1 and 131.1 of the Constitution (b) sections 9 and 11 were contrary to Articles 146 and 152 (c) section 12 was contrary to Articles 159.1, 159.2 and 155.3; and (d) section 15, read in conjunction with section 2, was contrary to Article 179 (2) that the present composition of three judges of this court was only empowered to hear appeals and not questions of constitutionality of law, 101

Part I: Constitutional Issues and that only the Full Bench of five was empowered to do so under the provisions of section 11 (1) of the aforesaid Law 33 of 1964 (3) that the provisions of Article 144 of the Constitution were still applicable on matters of procedure and that the present composition of three Judges should refer the matter to the Full Bench for determination (4) that the said Law 33 of 1964 was not duly promulgated and published in accordance with the provisions of Articles 47 (e) and 52 of the Constitution and (5) that Law 33 of 1964 was not published in Turkish in the official Gazette of the Republic, contrary to the provisions of Article 3.1 and 2, and that, consequently, that Law has not come into force. The court gave its ruling in the above preliminary objections on 8 October 1964, (Ruling published post, at p. 199) and then, on 10 November 1964, the court proceeded and gave its reasons for such ruling. (Vide judgments published post, at pp. 200 et. seq.). Held, (A) on the legal points raised by counsel for the respondents (1) Sections 3 (1) and (2), 9 and 11 of the Administration of Justice (Miscellaneous Provisions) Law, No. 33 of 1964, have been challenged on behalf of the respondents as unconstitutional, have been validly enacted. The same applies to section 12 of the Law, which has also been challenged by learned counsel for the respondents, as an integral part of the system of the administration of justice set up by Law 33 of 1964. (2) The wording of section 11.3, read together with subsections (1) and (2) of the same section, makes it abundantly clear that a division of three Judges duly nominated, as the present one, is fully authorised to hear an appeal, including constitutional matters, raised in the appeal. (3) The procedure for reference under Article 144 of the Constitution, by all courts, to the Supreme Constitutional Court, is no longer applicable or necessary, as the provisions of that Article have been rendered inoperative owing to the non-functioning of the Supreme Constitutional Court and the merger of the jurisdictions vested in that Court and the High Court into the New Supreme Court established under the provisions of Law 33. (4) Consequently, all questions of alleged unconstitutionality should be treated as issues of Law in the proceedings, subject to revision on appeal in due course, so far as the lower Courts are concerned. Where the question of unconstitutionality is raised in the course of an appeal, as in the present case, the matter may be decided by a quorum of three Judges of this court hearing the appeal, without reference to the Full Bench. (5) Law 33 of 1964 was duly promulgated by publication in the official Gazette of the Republic in the Greek language and that it came into operation on the day of its publication in the Gazette, viz. on 9 July 1964.

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The Bloodbath Begins (B) On whether the legal doctrine of necessity, should or should not, be read in the provisions of the written Constitution of Cyprus: This court now, in its all-important and responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity discussed earlier in this judgment, should or should not, be read in the provisions of the written Constitution of the Republic of Cyprus. Our unanimous view, and unhesitating answer to this question, is in the affirmative. Appeal allowed. Order for bail set aside.

VASSILIADES J delivered a judgment that highlighted the most important legal issues being considered. The following are some excerpts from it: The reasonable inference is that had it not been for ‘the necessity’ which caused its enactment, the new Law, probably, would not have been enacted; and if enacted, it might well be challenged as unconstitutional. This is the position in which I see the question for consideration in the light of the submissions before us. And it seems to me that the onus of establishing this ‘defence of necessity’, lies upon the side which invokes it. Opening his article on the subject, in the sixth volume of the publications of the Faculty of Laws, of University College London, Current Legal Problems (1953), on page 216 – (referred to by the learned Attorney-General) – Professor Glanville Williams says: ‘The defence of necessity is not so much a current as a perennial legal problem’. … ‘When I started to prepare this lecture – he writes on p. 217 – I thought of necessity as a definite kind of defence, occupying its own niche in the Law. But the authorities led me into unexpected paths.’ And after going as far back as Bacon, and Blackstone, the learned jurist observes: ‘In a manner of speaking the whole law is based upon social necessity it is a body of rules devised by the judges and the legislature to provide for what are felt to be reasonable social needs. Obviously our present concern is with something narrower than this. What we have to study is how far the notion of necessity can create new rules or serve as an excuse for dispensing with the strict law, where the exigency requires it.’ The eminent professor then confirms that the classical writers abound in maxims upholding the plea of necessity. And quotes a line of them, out of which, I think, two are of particular value in dealing with this case. They were both cited from Bacon: ‘Privilegium non valet contra republicam’ and ‘Salus populi, suprema lex’. The eminent author – concludes this part of his

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Part I: Constitutional Issues article, with a citation from Sir William Scott that ‘Necessity creates the law, – it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal.’ On page 224 of the same book one reads from the same author: ‘The law, in a word, includes the doctrine of necessity; the defence of necessity is an implied exception to particular rules of law. Even a criminal statute that makes no mention of the doctrine, can be regarded as impliedly subject to it, just as such a statute is impliedly subject to the defence of infancy or insanity or self-defence.’ Indeed, our Criminal Code (Cap. 154) does incorporate the legal doctrine of necessity, in the part dealing with general rules as to criminal responsibility. Section 17 reads: An act or omission which would otherwise be an offence may be excused if the person accused can show that it was done or omitted to be done only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon him or upon others whom he was bound to protect, inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The learned Attorney-General, in his able and most helpful address, referred us to reports of superior judicial authorities, and to writings of eminent jurists showing how this doctrine of necessity has long been accepted and applied in France, Germany, Italy, Greece, and how it is also found in that treasure of practical legal wisdom, the Mejelle, (articles 17, 18, 21 and 22), which the elder of us still remember with profound respect. After these introductory remarks, the learned judge continued with discussion on the jurisdiction of the Supreme Court whose composition prima facie violated the 1960 Constitution: I do not need to stress here the importance of a properly functioning judicial system, for the life of the State, for the existence of the community, and for the daily life of every person living within the territorial boundaries of the Republic. Nor do I find it necessary to touch upon any of the serious consequences of the division of the courts upon a communal basis, since the establishment of the State of Cyprus under its present Constitution. It is sufficient to say, that since the unfortunate events in December last, and the conditions created in the Island there – after, the judicial system established under the Courts of Justice Law, 1960 (No. 14 of 1960) upon the relative provisions of the Constitution, could not, and in fact did not properly work.

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The Bloodbath Begins Greek Judges, lawyers, litigants and public could not have access to courts situated within areas held by the armed forces opposing the State; and Turkish Judges, lawyers, litigants and public had great difficulty in obtaining permission from commanders to move out from areas controlled by Turkish armed forces in order to have access to courts or other places situated within the areas controlled by the State Government. The causes which produced this result, and which prevented or obstructed the Judges, Greeks and Turks, from regularly attending their courts, do not form part of the issues for decision in this case. They were causes which the State Government were, in fact, unable to remove, during the several months which have elapsed between the outbreak of this emergency, in December 1963, and the enactment of the new Law, in July 1964. The extremely difficult position of State Judges and their families, living within areas controlled by armed forces opposing the State Government, needs no description here. Nor is it, I think, necessary to point out how such a position could well interfere with their judicial functions and, to that extent, with the administration of justice in the Republic. So the evil depicted in the preamble of the new Law, which the House of Representatives, exercising the legislative authority in the State, came to remedy, at the instance of the Government, constitutes a facet of the necessity which, in the submission of the Attorney-General, justifies the enactment of the new Law, notwithstanding any apparent inconsistency with the text of the relative provisions in the articles of the Constitution referred to, by Mr Berberoglou. _____ Dealing with the jurisdiction issue, the judge then moved to comment on some legislation passed whose legality was called into question: This Court now, in its all-important and responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity discussed earlier in this judgment, should or should not, be read in the provisions of the written Constitution of the Republic of Cyprus. Our unanimous view, and unhesitating answer to this question, is in the affirmative. The next matter for consideration, is the form which this notion should take in its application to the case in hand. A convenient and well-balanced form, in my opinion, is that found in section 17 of our Criminal Code. I need not read the text again. The effect is as follows:

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Part I: Constitutional Issues The enactment of the Administration of Justice (Miscellaneous Provisions) Law, 1964, which would otherwise appear to be inconsistent with Articles 133.1 and 153.1 of the Constitution, can be justified, if it can be shown that it was enacted only in order to avoid consequences which could not otherwise he avoided, and which if they had followed, would have inflicted upon the people of Cyprus, whom the Executive and Legislative organs of the Republic are bound to protect, inevitable irreparable evil; and furthermore if it can be shown that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by the enactment in question, was not disproportionate to the evil avoided. _____________ The same conclusion results, in my opinion, from the application of the law to the circumstances pertaining to the promulgation of the enactment in question, by the House of Representatives, notwithstanding the provisions of articles 47 (e) and 52. When the two principal organs of the Executive Authority in the Republic, the President and the Vice-President, found it impossible to co-operate in any way, in the execution of their duty to the people of Cyprus during the whole of that period, one could hardly expect compliance with the provisions of Article 47 (e), for the promulgation of this Law.

In the remaining parts of his judgment, Vassiliades J applied a similar reasoning while dealing with such issues as the objection raised in connection with the nonpublication of the new Law in both the official languages of the Republic, as required by Article 3 paragraph 2. Triantafyllides, J also concurred with his counterpart and further elaborated on the criterion that may be applied to uphold the doctrine of necessity in a given case. While doing this, he made various references to other cases and scholars in Europe, America and Greece.

16. United Nations commentary on the bicommunal problems: report of UN mediator Galo Plaza to the Secretary-General (1965) V. Observations on the Past and Future Course of Mediation A. Introduction 113. I come now to the conclusions I have reached as the result of my endeavours so far, and I believe that from these conclusions there may 106

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114.

115.

116.

117.

flow some indications of the possible future course of the process of mediation envisaged by the Security Council. Let me begin by stating briefly the present situation as I see it. More than fourteen months from the beginning of the present crisis, and twelve months after the Security Council decided that action by the United Nations as well as by the parties directly concerned should be taken to help bring the crisis to an end, the problem of Cyprus remains unsolved. The United Nations has helped to achieve the primary and vital objective of preventing recurrences of fighting. But the ‘peaceful solution and agreed settlement’ aimed at by the Security Council in its resolution of 4 March 1964 – a solution and settlement that must, as stated by the Council, be consistent with the Charter, with the well being of the people as a whole and with the preservation of international peace and security – have yet to be achieved. For want of such a solution, Cyprus continues to be the centre of a dispute which endangers both the safety of its own population and the relationships of the countries most directly concerned – Cyprus itself and Greece and Turkey – and therefore the peace of the eastern Mediterranean area and possibly the world as a whole. The people of this young State are still living, as they have for more than a year, in an atmosphere of constant uncertainty, recurring tensions, and at the level at any rate of the Greek-Cypriot and TurkishCypriot leadership, continuing hostility and distrust, overshadowed by the danger or the hope, as the case may be, of possible intervention from the outside. They are still pointing guns at each other in a number of localities in the island. Barricades are still in position between the communities: in many places life looks ‘normal’ behind the barricades, but everywhere it is fraught with fears of what may happen next. And for many thousands of Turkish-Cypriots displaced by force or fear from their farms, jobs and homes, life does not bear even the superficial appearances of normality. The Government of the Republic, except for a part of the judicial system, is exclusively in the hands of the Greek-Cypriot majority community. And this community, through the Government, has at its disposal, both for the defence of the Republic and for the maintenance of internal authority, substantial armed forces. These forces are not purely Cypriot. They have been reinforced by military elements from Greece, as well as armaments and equipment from a variety of outside sources. With this power behind it, the Government exercises its authority everywhere in the Republic except in certain scattered areas and pockets containing probably between one-third and one-half of the Turkish-Cypriot community. The Government holds the limits of these areas by force, through armed police controls or manned fortifications or both. Inside these areas the Turkish-Cypriots –

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118.

119.

120.

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similarly reinforced from the outside, but on a much lesser scale, by soldiers, supplies and money from Turkey – maintain their own police and military controls and such public services as they are able to provide. Within the limits of this kind of self-segregation, there is some movement in and out of these areas, more especially by TurkishCypriots, and electricity, water and limited telephone services, where they exist, are generally allowed to cross the lines. In such a situation there is no apparent willingness – and indeed in practical terms little ability – on the part of the leaders of either community to offer any substantial concessions to an agreed political settlement. Each side rests its widely differing political ideas rigidly, and sometimes menacingly, on the amount of military force at its command. The forces immediately available, like the relative numerical strength of the two communities themselves, are greatly disparate, those of the Greek-Cypriots being much superior to those of the Turkish-Cypriots. But an uneasy equilibrium is maintained by two other factors: on the one hand the possibility (admitted on both sides) of further armed intervention by Turkey in accordance with the rights claimed from the Treaty of Guarantee, and on the other hand the presence and activity of the United Nations Force, as long as its function of helping to keep the peace has to be carried on without a political settlement in sight. Externally, the continuing dispute has gravely embittered relations between the two other parties most directly concerned, namely, the Governments of Greece and Turkey. Each is deeply involved in it, historically as well as actually: there is no concealing the support which each is giving, not only morally but also substantially, to one side and the other. During the crisis, moreover, each Government has felt obliged from time to time to place its mainland forces on the alert and take other precautionary measures. There is no doubt that the crisis has been costly to both Governments in more ways than one. I have been given to understand that, on the one hand, it interrupted and set back hopeful moves towards greater economic integration and closer relations of other kinds between Greece and Turkey; and that, on the other hand, the actual cost both of assistance to the communities in Cyprus and of defensive preparations at home since December 1963 has diverted funds sorely needed for and not easily spared from economic and social development in both countries. This whole state of affairs, both inside and outside Cyprus, has inevitably been far from conducive to the efforts at mediation. My task has been to try to promote a peaceful solution and an agreed settlement of the problem. I underline the word ‘agreed’. It has required me in the first place to try to find in the positions and aspirations of the parties concerned sufficient common elements to

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serve as a basis acceptable to all of them for a negotiated settlement. I have been obliged to look for this common ground with each of them separately, since, under the circumstances which I have described, none of the principal parties has been willing to meet the others except under conditions mutually unacceptable. During the course of my activities, I have been increasingly concerned to try to bring about as a first step towards wider consultations between the parties concerned, a meeting between representatives of the two Cyprus communities. I have emphasized to each of them the need to open some line of direct communication and to engage in a discussion of any aspect of the problem. I found the leadership of both sides agreeable in principle yet unable in practice to come together. This was because each made the acceptance of certain basic considerations a precondition of any such meeting. The Greek-Cypriot leadership has repeatedly stated to me, and up to very recent times has affirmed this in public, that it is prepared only to discuss with the other side the question of minority rights within the framework of a unitary state. The Turkish-Cypriot leadership, in turn, insisted through my last meeting with them that any discussion with the other side could only be within the context of a return to the 1960 Constitution and in the framework, in particular, of the mixed Council of Ministers established by that Constitution. The result has been that as long as such preconditions have kept them from meeting, the two sides have also been unwilling to modify significantly their separate conceptions of the methods by which the principles at issue should be applied. In spite of this impasse, however, I do not feel entitled to suggest to you that the mediation effort has reached its absolute limits and that it has finally been proved to be incapable of bringing about an agreed settlement of the problem of Cyprus. I have considered very carefully the meaning to be attached to my terms of reference. Clearly, my first duty was, as I have said, to undertake consultations with each of the parties concerned in order to explore the possibility of their reaching agreement among themselves. I have done that, and it has led me to believe that, without a change in present circumstances, no such possibility exists. It has accordingly been suggested to me, by some of the parties concerned, that my next responsibility is to bring forward in this report my own proposals for those conditions of a settlement which, in my opinion, would allow the parties to go as close as circumstances permit to their legitimate objectives. But another of the parties has contended that any such proposals, especially since they would in a sense bear the stamp and accordingly the moral force of the United Nations, would tend to place me in the position of an arbitrator rather than a mediator and therefore to carry me beyond the limits of my terms of reference.

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Part I: Constitutional Issues 122.

123.

124.

I do not necessarily accept that contention. In any event, however, I consider that there is an intermediate phase which does fall well within my terms of reference and which I believe capable of serving a useful purpose: namely, to bring forward now the results of my analysis of the positions of the respective parties, and to hope that, from the conclusions I have reached from this independent examination of their basic needs and aspirations, there will flow possibilities of bringing them together. I can see no other way of bringing about conditions under which the parties can agree to meet. I believe – and I must emphasize that this is a matter of my own judgement – that the parties principally concerned have brought themselves to positions to which, for one reason or another, they feel publicly committed and which they cannot volunteer to modify. It is also my belief, and I hope that my analysis of their positions will show, that their respective conceptions of the principles at stake are not so different in terms of their real interests, as to be beyond reconciliation. If that is true, there must obviously be some hope for a reconciliation of the methods by which they seek to implement those principles and to protect those interests. In giving the results of my analysis of the positions of the parties I therefore have a clear purpose in mind. It is to indicate, by implication and without any suggestion of seeking to impose upon the parties a course of action, some directions along which they should reasonably be expected to meet and try to seek an agreement. They need not be called upon to subscribe as a matter of course to the results of my assessment of their positions, for which I alone am responsible. But it may be, and I hope that this will be the case, that they will find in my examination of their fundamental attitudes and aspirations sufficient cause to allow the search for an agreed solution to enter upon a new and more fruitful phase. I can hardly emphasize too strongly the need to create, through mediation, the conditions under which the parties concerned can agree to meet for constructive discussions. If these efforts were now to come to an abrupt end, it would leave a dangerous and explosive situation. Mediation must go on, and I am gratified to be able to report that all of the parties wish it to do so; but to be fruitful it must now be aimed at providing the parties with a basis for coming together in direct discussions. The observations which follow are directed towards that end.

B. Some General Considerations 125. It would be useful at the outset, I think, to mention some general considerations to which one party or another attaches importance. The first of these is the relative standing of the parties in relation to the Cyprus problem. I have taken my terms of reference, as set forth

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The Bloodbath Begins in the Security Council resolution of 4 March 1964, to identify the parties directly concerned in the Cyprus problem as those which the resolution enjoins me to consult: namely the communities of Cyprus (which I naturally assume to mean essentially the Greek-Cypriot and Turkish-Cypriot communities), the Government of Cyprus and the Governments of Greece, Turkey and the United Kingdom. 126. The Governments thus identified are those subscribing to the Treaties signed at Nicosia on 16 August 1960, which were also referred to by the Security Council in the resolution already mentioned and which laid down, in effect, the conditions for the independence of Cyprus, including the very nature and political structure of the Republic. The ‘communities’ are those which adhered to the Zurich and London Agreements that formed the basis of the Treaties. Accordingly, I must accept that the Security Council would expect me to regard the two communities and the four Governments as being parties with an equal interest, from the legal standpoint, in the settlement of the problem of Cyprus. It follows that an ‘agreed settlement’ must be a settlement to which all of them can subscribe. On the other hand, the United Nations is dealing in this case with one of its Member States, by definition a sovereign and independent nation and for this as well as for other practical reasons I feel entitled to assume that a viable political solution must be sought in the first instance among the Cypriot people themselves and therefore, as matters stand, between the two main communities. I have proceeded, and will continue to proceed, on the understanding that no solution is feasible that does not meet with the acceptance of the Greek-Cypriot and Turkish-Cypriot communities. It is between those communities that peace, understanding and agreement must be found before there is any solution to the Cyprus problem; it is, at base, they who bear arms against each other; and it is they who must live under the terms of any settlement. 127. I therefore think it logical from the point of view of mediation that a settlement should be reached in two stages: the first between the two main communities of Cyprus, and the second by the other parties adhering to such a settlement. I would go further and say that, in the nature of things, such a procedure may prove essential in order to preclude any suggestion that a settlement is being imposed from the outside. This is a pragmatic approach, and I think necessarily so: it assumes that the other parties will find it in their own best interests to agree to a settlement arrived at among the parties within the Republic itself. 128. Secondly, I see a need to draw attention to the expression ‘community’ and ‘communities’, to explain the meanings, for they are at variance, that the opposing sides attach to them, and to make clear

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the sense in which I myself generally refer to them in this report. For the Turkish-Cypriot leadership, as also for the Turkish Government, the two communities are distinct legal entities recognized as such by the Constitution of 1960 and differing in status only insofar as the provisions of the Constitution establish such differences. From their standpoint there is no such thing as a ‘majority community’ or a ‘minority community’ in Cyprus. It is fundamental to the GreekCypriots’ argument, on the other hand, that the organization of the Republic should be based on the existence of a majority capable of governing and a minority entitled to the protection afforded by a normal democratic system. It is not of basic concern to their viewpoint that the present majority and the minority should happen to be identifiable by their ethnic origins. This difference of approach is obviously one that can only be resolved by a settlement of the Cyprus question as a whole, and not by any opinion which I could put forward. For my own purposes, and for no other reason than convenience, I use the words ‘community’ and ‘communities’ without any legal or political connotation and simply to identify the two ethnic groups. Thirdly, I feel bound to refer to the question of the status of the Treaties and Constitution of 1960. For reasons on which I need not dwell, the Turkish-Cypriot leadership and also the Turkish Government have attached particular importance to this question and have insisted on the validity of the Treaties and the Constitution, declaring that it is the fault of the other side that their implementation has been prevented. On the other hand, the Greek-Cypriots and the Greek Government regard them as not being in effect because they are unworkable; and the Government of Cyprus, as I have recorded earlier, has gone so far as to declare formally that it considers the Treaty of Alliance to have been terminated, basing this position on the refusal of the Turkish Government to order its national contingent in Cyprus to return to its barracks. I do not myself feel called upon to make any judgement on these matters. At the same time, having taken it to be the clear intention of the Security Council that the ‘agreed settlement’ of the Cyprus problem should be one agreed upon by the very parties that adhered to the Treaties of 1960, I think it logical to expect that the agreed settlement will not be one that merely restores the situation existing before 1963 and that, by agreeing to the settlement, the parties would necessarily agree also formally to abrogate or at least modify those Treaties. It is obvious that the Cyprus problem cannot any longer be solved by trying to implement fully the Nicosia Treaties and the Constitution governed by the Treaties. The succession of events, as well as the points of view held by the parties concerned, have left no doubt that the existence of the Treaties and the difficulties

The Bloodbath Begins encountered in applying them constituted the origin of this crisis and have continued to influence its development. It is of no great importance to try to determine whether the Treaties were in fact incapable of being applied or whether their application was made impossible through the fault, deliberate or otherwise, of one or more of the parties concerned. It is enough to observe that the difficulties in implementing the Treaties began almost immediately after independence and became increasingly serious. The events that have taken place in Cyprus since December 1963 have created a situation that makes it psychologically and politically impossible to return to the previous situation. Moreover, the very act of appointing a Mediator in order to help bring about ‘an agreed settlement of the problem confronting Cyprus’ can be said to indicate the conviction of the Security Council that some new solution would have to be found in order to bring an end to the existing crisis. C. Analysis of the Parties’ Positions 130. It will be understood that my own view of the positions taken by the parties to the Cyprus dispute must necessarily be governed by certain criteria. Foremost among these are those that emerge explicitly or implicitly from the Security Council’s resolution of 4 March 1964. Others are imposed by the actual circumstances of Cyprus, and I have felt bound to take these into account to the extent that they are not inconsistent with the resolution o the Security Council. According to these criteria, I have concluded that any settlement of the problem must take account of the following considerations: •

•

•

it must recognize, as the Security Council did by recommending the appointment of a Mediator, that the problem of Cyprus cannot be resolved by attempting to restore the situation that existed before December 1963, but that a new solution must be found; it must, in order to become an ‘agreed settlement’, be capable of securing the support of all the interested parties identified by the Security Council in its resolution of 4 March 1964: namely, the Governments of Cyprus, Greece, Turkey and the United Kingdom and the representatives of the Cyprus communities; it must be consistent with the provisions of the United Nations Charter, of which the following in particular seem relevant; the purposes principles and obligations relating to the maintenance of international peace and security, the peaceful settlement of disputes, respect for the principle of equal rights and self-determination of peoples, respect for human rights and fundamental freedoms, recognition of the sovereign equality of the Member States, abstention from the threat or use of force against the territorial integrity or political independence of any State, and respect

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•

•

for treaty obligations not in conflict with those of the Member States under the Charter; it must be in the interest of the well-being of the people of Cyprus as a whole, and to this effect it must be capable of satisfying the wishes of the majority of the population and at the same time of providing for the adequate protection of the legitimate rights of all of the people; it should also, in order truly to serve the interests of international peace and security and the well-being of the people of Cyprus, be a settlement capable of lasting.

131.

I have examined the positions of the parties with all these considerations in mind. I find it convenient to group my observations under three main headings: (a) independence, self-determination and international peace; (b) the structure of the State; and (c) the protection of individual and minority rights.

a) Independence, self-determination and international peace 132. The Republic of Cyprus is a sovereign, independent State: it was admitted as such into the membership of the United Nations, it continues to be a Member State, and the Security Council resolution of 4 March 1964 refers to it explicitly as ‘the Sovereign Republic of Cyprus’. 133. But the burden of the complaint of the Greek-Cypriot leadership and the basis of their political claims – in which they have the support of the Government of Greece – is that the independence and sovereignty of the Republic, and therefore its ‘sovereign equality’ with the other Members of the United Nations and its ‘right of self-determination’, were impaired by the Treaties of 16 August 1960 which formed an integral part and governed the nature of the Constitution of the same date. The effect of these Treaties was indisputably to forbid the people of Cyprus from amending their own Constitution, or at any rate the basic articles which determined the structure of the State; to prohibit the union of Cyprus with any other State; and to forbid the partitioning of the country. The Greek-Cypriot leadership claims to have accepted these restrictions under duress, in that the only alternative at the time would have been to suffer an attempt to partition the country. The political objective of the Greek-Cypriots has therefore been to secure for Cyprus an ‘unfettered independence’ which would allow the population freely to determine its own future according to the principle of majority rule and minority protection (including some special transitional measures) and to have the right to set aside the treaty restrictions on both the internal institutions of the State and its external relationship. 134. For their part, the Turkish-Cypriot leaders and the Government of

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Turkey do not dispute the restrictive nature of the conditions under which Cyprus acceded to independence. From their standpoint, however, these limitations were deliberate and essential: to secure for the Turkish-Cypriots their treatment not as a minority but as a community with distinct political rights, and to secure for Turkey the maintenance of an equilibrium in the eastern Mediterranean which, in the Turkish Government’s view, would be specially seriously disturbed should Cyprus become Greek territory. These two basic purposes complement each other, and help to explain the solidarity of the attitude of the Turkish-Cypriots and the successive Turkish Governments towards the settlement of the problem. They contend that any acceptable alternative to the 1960 settlement must serve exactly the same purposes. For them, therefore, any formula envisaging Cyprus continuing as an independent State must contain a guarantee against union with Greece and iron-clad protection of the safety and rights of the Turkish-Cypriots as a community: hence their proposal for the geographical separation of the two Cyprus communities under a federal government bound by treaty obligations against union with any other country and also – as their own quid pro quo – against the partitioning of Cyprus. Likewise, they contend that any ‘right of selfdetermination’ accorded as an equal but separate right to the TurkishCypriot community; if the Greek-Cypriots chose to exercise it in favour of union with Greece, the Turkish-Cypriots would be free to exercise it in favour of union with Turkey, insisting therefore on the partitioning of the country. Different though these approaches may be it is still possible to read into the positions of the two sides an objective which, so long as it is stated in very broad terms, would seem acceptable to them both: namely, an independent Cyprus with adequate safeguards for the safety and the rights of all its people. I have found it useful, in my own examination of their positions, to trace the paths back from that apparent common objective to determine where and why they diverge, and to consider the alternative routes that appear open. If the independence of Cyprus is to be considered as the first and most important basic principle on which the parties could agree, it will be necessary for all the parties to understand and agree on what it means in the context of the circumstances of Cyprus. And it is here that the most difficult aspect of the whole problem arises. The Greek-Cypriots have coupled their aspiration for ‘unfettered independence’ with the demand for the right of self-determination. Many of them have not concealed their hope and belief and the Turkish-Cypriot leadership has not concealed its suspicion and fear – that the purpose and result of the exercise of this right would be to realize the long-cherished aspiration for union (Enosis) with Greece. These hopes on the one

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hand, and fears on the other, have been encouraged by the knowledge that the necessary consent of the Greek Government would be forthcoming. As far as the positions of the other parties are concerned, there has been a tendency by the Greek-Cypriots to disregard them on the assumption that ‘unfettered independence’ and the removal of the treaty limitations would already have been achieved, leaving selfdetermination in this sense a matter between Cyprus and Greece exclusively. I am certain in my own mind that the question of Enosis is the most divisive and potentially the most explosive aspect of the Cyprus problem. I have been assured by the Turkish-Cypriot leadership and by the successive Governments of Turkey that any attempt to bring it about against their will would provoke active and vigorous resistance. And I judge this to be true, short of a change in attitudes, which only a long passage of time could bring about. I feel bound, therefore, to examine this question with the greatest care. The question of Enosis itself has several aspects. If its imposition in present circumstances would be judged from the Turkish side as tantamount to an attempt at annexation to be resisted by force, it is also a question which, to the best of my understanding, does not enjoy unqualified support among the Greek-Cypriots as a whole. It is true that among them, as among many people in Greece, the word and the thought of Enosis have a highly emotional quality: it serves to some as a symbol of Pan-Hellenistic ideals, to others as the battle-cry of the resistance against colonial rule, and in the worst times of the present crisis it seemed like a banner under which the Greek-Cypriot community as a whole found their rallying-point. But as a practical step in the political evolution of Cyprus it has struck me, in discussions with a wide range of Greek-Cypriot opinion, as having a much less united and imperative driving force behind it. This may be in part because there have been few precise indications of the form which Enosis should take and of the economic, social and political consequences which would flow from it. I understand Enosis to mean in its literal sense the complete absorption of Cyprus into Greece, but I would hesitate to say that this is what every GreekCypriot favouring it intends it to mean. The Greek-Cypriot leaders in the Government of Cyprus – maintaining the position that Enosis would be a matter purely for Cyprus and Greece to decide – could tell me nothing about the form in which they envisaged it taking place except that this would be determined by the Cyprus Government in agreement with Greece before the Cypriot people were consulted on the subject. I had sought clarification of this question not only because of the existing Turkish opposition to the idea but also because I had no doubt that the implementation of

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Enosis, even should it be accepted as an element of the settlement of the Cyprus problem, would entail many complex problems, political, economic, financial and other. For example, Cyprus and Greece have now different bases for their systems of law and administration of justice; Cyprus, which produces essentially the same sorts of agricultural commodities as Greece, now exports most of its products to the United Kingdom under conditions of commonwealth preferences; it has a higher standard of living and a higher wage level, a different tax structure and a more comprehensive social security system; it also has a different currency system and, being a member of the sterling bloc, its pound is maintained on a parity with the pound sterling and under present arrangements is freely convertible into any other sterling bloc currency and relatively freely convertible for dollars. All such matters would require adequate adjustment should Enosis be brought about. Their effects would vary widely depending upon whether Enosis would take the form of a complete union with Greece, in the sense that Cyprus would become one or more provinces of Greece, or whether Cyprus would be given some privileged status within the Kingdom of Greece. In either case, a number of complex problems would arise and require urgent solutions and it seemed to me indispensable that the Cypriot people should be fully informed of them if they were to be called upon to make their choice. To the best of my knowledge, there is no common understanding on either the Greek-Cypriot or the Turkish-Cypriot side, nor between the Cyprus and Greek Governments, of what form Enosis would take and what its effects and implications would be. I have stated the foregoing as matters of fact and of impression. I do not wish it to appear that I have any opinion on the merits or otherwise of Enosis. Moreover, I must also make it clear that neither the President nor the Government of Cyprus, in their discussions with me as the Mediator, actually advocated Enosis as the final solution of the Cyprus problem. Archbishop Makarios and members of the Government acknowledged that Enosis had been the original aim of the uprising against British rule and that it remained a strong aspiration among the Greek-Cypriot community. They went so far as to express the opinion that if the choice between independence and Enosis were to be put to the people there would probably be a majority in favour of the latter. Some of the Ministers and other high officials of the Government have openly advocated it in public statements; but for the Government as a whole the formal objective is limited to unfettered independence, including the right of self-determination. I understood this position, of course, not to preclude the possibility of Enosis, which would obviously be implied in the right of the people of Cyprus, once ‘fully independent’, to choose whatever future course they wished.

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It is far from me, in any event, to dispute the principle that the people of an independent country possess the right to determine their own future, including their relationship with any other State. This right follows naturally from the fact of sovereign independence. If Cyprus should become ‘fully independent’ by being freed from the 1960 treaty limitations, it would automatically acquire at the same time the right of self-determination; and if it were an independent State based on democratic principles, it would be entitled to insist that the right should be exercised by the people as a whole, acting directly by such means as a referendum or indirectly through their Government. This brings me to what I regard as the most crucial aspect of the question of Enosis, What are the considerations by which a modern sovereign State exercises its right of self-determination? I suggest that just as the enjoyment by the citizen of his fundamental rights is not an absolute matter but is governed by consideration for the rights and legitimate interests of his fellow citizens, so also is the exercise by the State of its right of self-determination governed by its obligations as a State. These obligations relate both to the well-being of all its citizens and especially in the case of a State that has undertaken the solemn commitments laid down in the United Nations Charter, they relate also to the cause of international peace and security. I believe that the Government of Cyprus, which has professed its desire for a peaceful solution to its country’s problem, can be expected to follow this general rule. I am confident that in informing, influencing and responding to public opinion on the future status of the country, the Government will recognize that it has a most serious duty to satisfy itself that all of its obligations are being met, towards both the well-being of its own citizens and the peace and security of the region it shares with other nations. It will wish to be satisfied that any action it may take, in the name of the right of self-determination, will help to heal rather than aggravate the dissensions among its own people, and to serve rather than jeopardize international peace and security. I must state here in all frankness how I myself see the Enosis question in the light of the above considerations. My observations of the situation in Cyprus over a period of many months, my discussions with many of its citizens, and my consultations with representatives of all the parties concerned have made it difficult for me to see how any proposed settlement which leaves open the possibility of Enosis being brought about against the will of the Turkish-Cypriot minority can secure agreement at present or in the foreseeable future. Serious warnings have been given that an attempt to impose such a solution would be likely to precipitate not only a new outbreak of violence on Cyprus itself but also a grave deterioration in relations between Turkey on the one hand and Cyprus and Greece on the other, possibly

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provoking actual hostilities and in any case jeopardizing the peace of the eastern Mediterranean region. The question can be raised, consequently, whether it would not be an act of enlightened statesmanship – as well as a sovereign act of self-determination in the highest sense – if the Government of Cyprus were in the superior interests of the security of the State and the peace of the region to undertake to maintain the independence of the Republic. This would imply, of course, a decision on the part of the Government to refrain, for as long as the same risks persisted, from placing before the population the opportunity to opt for Enosis. Should the Government of Cyprus undertake such a course of action, I am confident that the Government of Greece, in the same spirit, would be prepared to respect it. I must emphasize again that in view of the sovereign prerogatives which the Cyprus Government would enjoy, this decision would naturally take the form of a voluntary act on its part. To maintain the independence of Cyprus would have to be a free undertaking on the part of the Government and people of Cyprus and not a condition to be imposed upon them. It would remain open to the Government, if it wished the population as a whole to share directly in this exercise of the right of self-determination, to seek through some such means as a referendum its approval of the proposed terms of settlement including the undertaking to maintain the independence of Cyprus. I should like to emphasize here my view that the whole of any proposed settlement based on continued independence, and not the question of independence alone, should in that case be put to the people. My reasons for this will become obvious from the rest of my report. At this point, I need only add that I am convinced that the present leaders would be in a strong position to explain such proposals to the people and to gain the understanding and acceptance of the majority. It would also be open to the Government, if it wished to use this further means of encouraging the whole population to vote freely, to invite the United Nations to observe the referendum. Assuming a course of action such as I have described, the common objective would now be considerably more precise: a ‘fully independent’ state which would undertake to remain independent and to refrain from any action leading to union with any other State. I should regard this clarification as not only satisfying the principle of selfdetermination but also as going a long way towards meeting another essential requirement of a settlement: namely, that it should contribute to the maintenance of international peace and security. I should mention here another useful action in that direction, which the Government of Cyprus has already indicated its willingness to take. The President, Archbishop Makarios, has declared his readiness to bring about the demilitarization of Cyprus, as a contribution to the peace

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and security of the region. He has reacted favourably to the idea that international assistance, through the United Nations, should be invited for this task. Moreover, he has indicated his desire to see Cyprus refrain from aligning itself with any grouping of nations for military purposes. For its part, the Government of Turkey indicated to me when I first raised this question with it last November, that the demilitarization of an independent Cyprus, but only if effectively carried out, and only within the context of a settlement that guaranteed the independence of Cyprus, would serve the interest of Turkey’s considerations of security. The suggested demilitarization of Cyprus has inevitably raised the question of the future of the two British sovereign base areas. The position of the United Kingdom Government is that, since those areas lie outside the territory of the Republic, they do not form part of the present dispute, I am encouraged to believe, however, that this question could, if it were to become a vital aspect of the settlement as a whole, be constructively discussed among the parties to the Treaty of Establishment by which the base areas were reserved from the territory of the Republic.

(b) The structure of the state 149. The next important point of divergence between the parties concerns the structure of the independent State. On the one hand, the GreekCypriot leadership insists upon a unitary form of government based on the principle of majority rule with protection for the minority. On the other hand, the Turkish-Cypriots envisage a federal system within which there would exist autonomous Turkish-Cypriot and GreekCypriot States, the conditions for whose existence would be created by the geographical separation, which they insistently demand of the two communities. 150. It is essential to be clear what this proposal implies. To refer to it simply as ‘federation’ is to oversimplify the matter. What is involved is not merely to establish a federal form of government but also to secure the geographical separation of the two communities. The establishment of a federal regime requires a territorial basis, and this basis does not exist. In an earlier part of this report, I explained the island-wide intermingling in normal times of the Greek-Cypriot and TurkishCypriot populations. The events since December 1963 have not basically altered this characteristic; even the enclaves where numbers of Turkish-Cypriots concentrated following the troubles, are widely scattered over the island, while thousands of other Turkish-Cypriots have remained in mixed villages. 151. The reason why the Turkish-Cypriot leadership seeks a geographical separation, which does not now exist, of the two communities

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Moreover, the proposed federated States would be separated by an artificial line cutting through interdependent parts of homogeneous areas including, according to the Turkish-Cypriot proposals, the cities of Nicosia and Famagusta. Would not such a line of division inevitably create many administrative difficulties and constitute a constant cause of friction between two mutually suspicious populations? In fact, the arguments for the geographical separation of the two communities under a federal system of government have not convinced me that it would not inevitably lead to partition and thus risk creating a new national frontier between Greece and Turkey, a frontier of a highly provocative nature, through highly volatile peoples who would not hesitate to allow their local differences to risk involving the two home countries in conflict and consequently endangering international peace and security. Again, if the purpose of a settlement of the Cyprus question is to be the preservation rather than the destruction of the State, and if it is to foster rather than to militate against the development of a peacefully united people, I cannot help wondering whether the physical division of the minority from the majority should not be considered a desperate step in the wrong direction. I am reluctant to believe, as the TurkishCypriot leadership claims, in the ‘impossibility’ of Greek-Cypriots and Turkish-Cypriots learning to live together again in peace. In those parts of the country where movement controls have been relaxed and tensions reduced, they are already proving otherwise. It is essential, I think, to reconsider the objective intended to be served by the geographical separation of the two communities and to look for other ways to achieve that objective. I am inclined to regard separation not as, in itself, a basic principle in the proposals of the Turkish Government and the Turkish-Cypriot leadership, but rather as the only means which they consider workable of ensuring respect for the real principle at stake: namely, that the Turkish-Cypriot community must be protected and protected adequately. I fully support that principle. I feel strongly that the protection of the Turkish-Cypriot community is one of the most important aspects of the Cyprus problem and that everything possible must be done to ensure it, including safeguards of an exceptional kind. But I would think it essential for the Turkish Government and the Turkish-Cypriot leadership to reconsider their contention that nothing short of the geographical separation of the two communities can ensure adequate protection. I have found agreement on all sides that there must be practicable and effective safeguards for the security and the rights of all the citizens of Cyprus, as well as the legitimate rights of the Turkish-Cypriots as a community. To be practicable, it is difficult to see how they can take the drastic form of geographical separation of the communities. To be

The Bloodbath Begins effective, as well as practicable, they could conceivably include certain special measures of a different kind, as discussed below. (c) The protection of individual and minority rights 158. One of the principles of the Charter which I regard as having the highest relevance to any settlement of the Cyprus problem is that of respect for human rights and fundamental freedoms, without discrimination. The fact that the population of the island continues to consist of two principal ethnic communities, the further fact that they are unequal in numbers and finally the gravity of the conflict which has developed between them – all these elements have given and must continue to give rise to serious difficulties in applying this principle, and must be made the subject of special attention. 159. From the moment a settlement is in sight, the Charter’s insistence on respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion, will assume a capital importance in Cyprus. It will be an indispensable condition for the progressive rebirth of confidence and the re-establishment of social peace. The obstacle against the full application of the principle cannot be over estimated; and they are no less psychological than political. The violent sharpening of ‘national’ sentiments over the months of crisis will for some time make it extremely difficult for officials at all levels to impose or even exercise strict impartiality towards all the citizens of the country, and without that impartiality and understanding there will be a constant risk of acts of discrimination, even if laws are respected in the formal sense. Furthermore, there are personal hatreds that will last beyond any political settlement. Again, not all of the too many weapons that are in too many hands are likely to be surrendered readily. These factors will, for a period whose duration can only be guessed at, create problems of personal security on a serious scale. 160. For all these reasons there is no doubt in my mind – and on this point all parties are in agreement – that there must be established in Cyprus the most rigorous possible guarantees of human rights and safeguards against discrimination. For some time, in order to help the two communities to find their way out of the vicious circle of deep distrust between them, I am convinced, indeed, that certain international guarantees must be provided. 161. It is hardly necessary for me to say that while the safeguards would apply to all the people of both communities, in practice it is the Turkish-Cypriot minority which will stand most in need to them. The safeguards are justified not only by the need to re-establish a durable peace in the life of the island, nor only by the need to ensure that the settlement accords with the Charter of the United Nations. Simple equity also demands that these safeguards should be provided. It will

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need not to be forgotten that the Turkish-Cypriot community obtained from the Zurich and London Agreements a series of rights greatly superior to those which can realistically be contemplated for it in the future. In addition, it would be just and fair to recognize that however effective the safeguards that can be devised any Turkish-Cypriot who fails to find in them a basis for reasonable confidence in the new order of things, would have the right to resettle in Turkey, and should be assisted to do so, with adequate compensation and help in starting a new life. Appropriate assistance should also be provided, without discrimination, to rehabilitate all those whose property has been destroyed or seriously damaged as a result of the disorders. This will be a task of reconstruction for which, I am confident, external assistance, including that of the United Nations family of organizations, would be forthcoming at the Government’s request. I must point out also that the fact that the population of Cyprus consists, even without geographical separation, of two main communities gives rise to another special problem in regard to the application of the United Nations principles of human rights. Each of the two communities is profoundly attached to the ‘national’ traditions which were bequeathed to it by history, and each has always enjoyed a large degree of autonomy in what it has regarded as the essential fields of religion, education and personal status. In the light of widespread modern conceptions of the need for the integration and assimilation of differing peoples in the interests of national unity, it may be a matter for regret that little was done under any of the previous regimes, ancient or recent, to bridge the separateness of the Greek-Cypriot and Turkish-Cypriot communities. Recent events have, however, made these distinctions more rather than less acute, and to try to eliminate them now by drastic measures could only mean taking a distinctly backward step in the field of the protection of human rights as far as the minority community particularly is concerned. Since independence the Greek-Cypriot community – being in the majority not only in terms of numbers but also in the governing institutions of the State – has been in a position to deal freely with its own affairs of religion, education and personal status within the framework of the State: should it have the same powers in respect of the Turkish-Cypriot community, the latter would feel itself deprived of some of the most fundamental of human rights. I have shown earlier in this report that the 1960 Constitution went to unusual lengths in trying to meet this situation by conferring on the Turkish-Cypriot community, as such, a number of political rights designed to allow it to protect itself from being completely subjugated by the majority community. It is, however, this feature of the constitutional system that has been most severely criticized and that has given rise to the most serious difficulties of implementation. It seems

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impossible to obtain agreement on maintaining such a constitutional oddity in the future against the will of the majority. Yet the problem behind it cannot be ignored, and that problem – the hard fact of the distinctive character of the two communities, sharpened by the recent events – requires that some special measures should be applied in order to ensure to the members of the minority community a proper voice in their traditionally communal affairs and also without weakening the unity of the State, an equitable part in the public life of the country as a whole. Such measures will be a necessary condition for any settlement that must take account, as the Security Council’s resolution requires, of the ‘well-being of the people of Cyprus as a whole’. They need only be transitional: indeed they should be clearly understood by all sides to be so; but they seem to me in fact the only practical way to ensure in the longer run, the political unity of the country. Failure to provide a transitional means of ensuring a share by the Turkish-Cypriot community in the political life of the State could only, I am convinced, have the opposite effect from accelerating their integration. It would only perpetuate their separateness – because it is in the general nature of things that the larger community tends to dominate and that the smaller to be dominated; and it is in the present nature of things in Cyprus that this could prolong the ferment of hostility between them and the risk of endless acts of violence. I cannot emphasize this matter too strongly. It is not a question of denying the right of a political majority to rule, but a question of the need to avoid the excessive dominance of one presently distinct community over another, to an extent and in manner likely to delay indefinitely the unity of the population. I have therefore been pleased to be able to record the assurances which Archbishop Makarios has given of his concern for these aspects of the problem and the specific measures which he has expressed his willingness to apply. As regards individual rights, these measures include, on the one hand, a number of permanent provisions: the incorporation in the Constitution of human rights and fundamental freedoms conforming with those set forth in the Universal Declaration of Human Rights adopted by the United Nations; judicial procedures for their application, and vigilance to ensure equal treatment in appointments and promotions in the public services. They include, on the other hand, certain exceptional and transitional provisions; of foremost importance among these, in my opinion, an invitation to the United Nations to appoint a commissioner, with a staff of observers and advisers, to be present in Cyprus for as long as necessary; and also the granting of a general amnesty and provision for the resettlement of Turkish-Cypriots who wished to leave the island and for the rehabilitation of those who would remain. The need for such measures

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having been conceded in principle, I feel confident that their improvement and extension are, if need be, matters susceptible of negotiation between the parties. I attach particular importance to the presence and role of a United Nations commissioner, a unique and extraordinary safeguard whose very existence would, I believe, engender confidence in all Cypriots. In regard to the second aspect – the matter of the position of the Turkish-Cypriots as a community – I have been pleased also to find some measure of sympathetic understanding in the attitude of the President. He has already offered them a continuation of their previous autonomy in certain fields of religion, education and personal status. Moreover, he conceded to me the desirability of finding some means, for a transitional period at least, of ensuring representation of the Turkish-Cypriots in the governmental institutions. This might be done by a system of proportional representation or reservation of seats in the parliament, and also, perhaps by the appointment of a TurkishCypriot Minister responsible for the affairs of his community – without prejudice, of course, to other Turkish-Cypriots being elected or appointed on merit. In this field, too I am therefore confident that negotiations between the parties could be fruitful. Another question that will need to be examined and agreed between them is that of the official languages of the State, for use in the administration, the courts and other institutions. It may be that besides Greek and Turkish it will be necessary to give English the transitional status of an official language to serve as a bridge between the other two. The control and staffing of the police force is another matter for careful and sympathetic study. So also is the possibility that municipal and other forms of local government could be so organized as to give the greatest possible measure of local autonomy so that in areas where one community or the other predominates, it would feel that it is playing an effective and equitable part in the management of local affairs.

(d) The question of guarantees 166. In any progress made towards a settlement the question of the means of guaranteeing its provisions will inevitably arise. It, would, of course, be open to the parties to embody the terms of the settlement in treaty arrangements; but my impression is that, for very different reasons, both sides to the dispute would approach such a course with misgivings. 167. On the one hand, the conception of treaty arrangements that would affect the internal affairs of the Republic is anathema to many GreekCypriots. It conjures up the restrictions and impositions that they claim to have suffered by reason of the Treaties of 1960. Even if – and this is essential – the terms of the new settlement are in every respect

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freely and consciously agreed to by the people of Cyprus, it is conceivable that the old stigma would remain. On the other hand, the Turkish-Cypriots feel also that they have had a painful experience in placing excessive faith in treaties, having seen many of their treaty rights forcibly suspended and the Guarantor Powers fail to act in the crisis as the Turkish-Cypriots expected them to. It may be that a different form of guarantee will have to be devised. In this regard I see an opportunity for the United Nations, to play an invaluable role, if it so agreed. The possibility could be explored, I believe, of the United Nations itself acting as the guarantor of the terms of the settlement. It might prove feasible, for example, for the parties to agree to lay before the United Nations the precise terms of the settlement and ask it not only to take note of them but also to spell them out in a resolution, formally accept them as the agreed basis of the settlement, and request that any complaint of violation or difficulty in implementation be brought immediately before it. Such a role for the United Nations would, I believe, be in full accordance with the letter and the spirit of the Charter.

(e) Concluding remarks 169. For the reasons stated at the beginning of this chapter I have not felt it appropriate at this stage to set forth precise recommendations or even suggestions of a formal kind for a solution to the problem of Cyprus. I have tried instead, by analysing the positions of the parties and defining their objectives as I see them, to make apparent certain directions they themselves should explore in the search for a peaceful solution and an agreed settlement. I have done so because it became clear to me that the purpose of mediation could not be further served by my continuing to hold separate consultations with the parties under the existing circumstances. 170. If I have any formal recommendation to make, it is that the parties concerned should try, in the light of the observations I have made in this report, to see their way clear to meet together – with or without my presence, according to their wishes – at a suitable place on the earliest possible occasion. In my view the procedure most likely to produce fruitful results would be for such a meeting or series of meetings to take place in the first instance between representatives of the two principal parties who belong to Cyprus: the Greek-Cypriot and Turkish-Cypriot communities. I have explained earlier (see paras 126 and 127) my reasons for holding this view. However, my suggestion by no means precludes other alternatives that may prove acceptable, whether initial meetings between all the parties concerned, or a series of meetings, consecutive or even simultaneous, at different levels and among different groups of the parties. Moreover, if, as I

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171.

172.

173.

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believe, the most useful beginning can be made at the level of the Cyprus communities, this does not alter the fact that, as I have stated earlier, an ‘agreed settlement’ in the context of the Security Council resolution of 4 March 1964 must have the adherence of all the parties mentioned in the resolution. Any agreement arrived at between the Cyprus communities would therefore require endorsement by the other parties concerned. I do not suggest a formal agenda for these meetings, nor do I expect that at present it would be feasible for the parties concerned to provide one. They may be agreeable, in the first instance, simply to take the observations in my present report as the basis for an exchange of views – all the more so should they agree to accept the report, as I intend it, as a document for which I alone am responsible. Should this procedure lead the way eventually to an agreement on all major issues at the leadership and governmental level, and should it then be found necessary to refer the terms of settlement to the people of Cyprus directly, I consider that it would be essential to put to the people the basic settlement as a whole. They should be asked to accept or reject it as a single package, and not in its various parts. This is because any settlement that might be arrived at will necessarily be in the nature of a compromise involving concessions to be made by both sides from their original positions. It seems to me inevitable that it will have to be a carefully balanced series of agreements, each relying on the other and all of them on the whole. It will also be accepted, I believe, that should there be a majority vote against the terms of the settlement, this should not be construed as a vote in favour of any other particular solution. Instead, it would only signify that the process of seeking an acceptable form of settlement would have to begin anew. I reiterate and emphasize my conviction that every endeavour must continue to be made to bring about a peaceful solution and agreed settlement of the Cyprus problem. By any and all appropriate means, the search must go on, with patience, tolerance and good faith. The well-being of the Cypriot people demands it; so does the cause of international peace and security.

IN SEARCH OF A SOLUTION ______________________________________________

17. The Acheson Plan (1967) The increasing involvement of the United States in the Cyprus dispute included a fitful and doomed negotiation by Dean Acheson. It was doomed because it was too radical for any of the four parties to accept. The involvement of Acheson is interesting for one particular reason – he was the embodiment of the American establishment, the secretary of state during the Truman administration and thereby present at the creation, in his famous phrase, of the postwar order, which included the cold war, the UN and NATO, all of which were important considerations for the international community when it came to Cyprus. His mission also heightened awareness of the Cyprus problem in the United States; the failure of the Acheson Plan, in fact, was treated in the American press as further evidence of Makarios’s deviousness and pro-Soviet tilt, a very considerable charge in those days. Below is the text of Acheson’s efforts and some correspondence with Greek prime minister George Papandreou in August 1964. Acheson Plan 1 In return for Turkish agreement to the union of Cyprus with Greece, Greece would make certain concessions to Turkey along the lines suggested below: 1. To give Turkey assurance that its security would not be threatened from Cyprus or from the direction of Cyprus, Greece would cede to Turkey a portion of the Island in perpetuity, that is in full sovereignty. A. This area would be used by Turkey as a military base with full rights to deploy ground, air and naval forces therein. The military purpose of this base would be to deny the Island to hostile forces as a base of operations against Turkey and to keep open the approaches to the ports of Mersin and Iskenderun. B. The area should be fairly substantial in size, large enough both to permit

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Part I: Constitutional Issues the building of facilities and the conduct of training manoeuvres and operations. C. It seemed that a logical location for the base area might be the Karpas Peninsula because it was detached from the main body of the Island and was ideally situated to cover the approaches to the Turkish ports. Different boundary lines for a base on the Peninsula were discussed at different times; one, which appeared to be the minimum acceptable to the Turkish Government, ran from Peristeria on the north coast to a point just southwest of Boghaz on the southeast coast. (The Turks agreed that the Monastery of Apostolos Andreas, near the tip of the peninsula, could be excluded from the base area). 2. Special arrangements should be made for the protection and welfare of those Turkish Cypriots who would not be included within the area of the Turkish sovereign base. (This, of course, means the vast majority of the Turkish Cypriot population). These were outlined as follows: A. There might be one, two or three relatively small areas of the Island in which Turkish-Cypriots would be in the majority or very nearly so and which could be treated as separate geographical units for administrative purposes within the general governmental structure of the whole Island. The Turkish quarter of Nicosia and the area stretching north of it to the Kyrenia Range was a de facto example of such an area. These administrative subdivisions could have a special local administration of their own, directed and implemented on the ground by Turkish-Cypriots. The functions of these local administrations would have to be spelled out after careful study but might include such things as the collection of taxes, the expenditure of local revenues for local purposes (schools, mosques, local water supply and local roads), the direction of local police forces and the general administration of justice insofar as it applied to Turkish-Cypriots, and possible other attributes of municipal and provincial governments everywhere. These administrations could not constitute, however, states within a state; they would necessarily be ultimately responsible to some higher authority, which might be the central government of Cyprus or the government of Greece or its senior representative on Cyprus. B. In all the rest of the Island, where Turkish-Cypriots would necessarily continue to be a relatively small minority of the population, a different arrangement could be made. There might be a central Turkish-Cypriot administration established in Nicosia, which would control, for TurkishCypriots only, many of the same activities and functions that would be undertaken by the local authorities in the separate small geographic units mentioned above. This could be done by demarcating the Turkish quarters of the major towns and identifying the scattered villages that are allTurkish or have a clear Turkish majority. These would then be considered

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In Search of a Solution as under the authority of the central Turkish organization in Nicosia, which would supervise the election or appointment of local leaders, the selection and administration of police and other normal municipal functions and could provide a system of lower courts for the handling of personal status cases, civil suits between Turks, criminal trials involving only Turks and similar matters of purely Turkish-Cypriot concern. Like its counterparts in the separate geographical units, this organization would in turn be responsible to the central authority of the Island. Clearly, many aspects would have to be worked out by those concerned. C. The Turkish-Cypriots would necessarily have to be citizens of whatever central authority was in control of the Island. Subject to the privileges and responsibilities of this citizenship, they could have the local and personal rights and privileges indicated in the preceding two paragraphs. It goes without saying that they would be guaranteed all normal human and minority rights, of which those provided in the Treaty of Lausanne are good examples. D. As a special safeguard in addition, Mr Acheson suggested that there should be an international commissioner or commission, perhaps appointed by the UN or the International Court of Justice, who or which could be physically present on the Island and charged with watching over the observations of the special status and rights of the Turkish-Cypriots. Precedents for this exist in the cases of Danzig and the Soar during the period between the two world wars, and the US Government considers that this experiment worked well until the advent of Hitler to power in Germany upset all established arrangements. The commissioner or the commission would be empowered to hear complaints, investigate them and make recommendations to the appropriate authorities for correction of injustices. It is conceivable that he might be empowered to order correction and or compensation, subject to appeal by the party opposed. If his recommendations or decisions were not accepted by one party or the other, there would be a right of appeal either to the International Court of Justice at The Hague or to some other judicial body which might be specially established under the authority of the UN. An alternative the parties might wish to consider would be for the commissioner and the court to be appointed by NATO, with the NATO members assuming responsibility for enforcement of their decisions. Acheson Plan 2 The Greek government declined the first Acheson Plan, and so a second version was submitted. 1. The Turkish base area simply be leased to Turkey for an agreed period of years – 50 was suggested as reasonable – instead of being ceded as sovereign Turkish territory.

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Part I: Constitutional Issues 2. The boundary of the base area on the Karpas Peninsula would be a line drawn north and south just west of the village of Komi Kebir (thus reducing the area considerably). Alternatively, Mr Acheson suggested that the line could be drawn on the basis of military considerations after study by the Supreme Allied Commander for Europe. 3. The special provisions and guarantees for the Turkish-Cypriots would be modified from those proposed in Acheson Plan I to eliminate the special areas containing a Turkish-Cypriot majority which would have been treated under the first plan as moderate administrative units. Instead, it was suggested that at least two of the eparchies into which Cyprus might be divided under Greek rule would always be headed by Turkish-Cypriot eparchs. These eparchies would always be those containing a substantial Turkish-Cypriot population. In the eparchies containing such a substantial Turkish-Cypriot population, the administrative staffs and police would always contain a substantial proportion of Turkish-Cypriot officials and employees. 4. Instead of the central Turkish-Cypriot administration in Nicosia which was proposed in Acheson Plan I, there would be a high official in the central Government of Cyprus, under the chief Greek administrator, who would be provided with a staff and would be charged with looking after the rights and welfare of all Turkish-Cypriots. This official would advice and assist Turkish-Cypriots, receive and investigate complaints about discriminatory treatment or failure to give guaranteed rights, and could appeal to the courts or central government of Greece in case of need. 5. The special guarantees or minority rights envisaged in the first plan, such as those provided by the Treaty of Lausanne and the European Convention on Human Rights, would be retained. Similarly, the proposed International Commissioner appointed by the UN would be part of the second plan as of the first.

18. Letters to and from Acheson and Papandreou, summer 1964 Letter from Dean Acheson (then an adviser to the Johnson administration) to Greek Prime Minister George Papandreou, 26 July, 1964. In the previous talks I recommended to the Greek Government that, within the framework of a solution which it might be possible to find regarding the Cyprus problem, either for an independent Cyprus or of a Cyprus directly connected with Greece, certain rights of self-administration must be secured for the Turkish minority.

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In Search of a Solution The minority must also have full legal safeguards of acknowledged human and minority rights, of the type that are defined in the Lausanne Treaty. In order to give to Turkey and to the Turkish Cypriots the assurance that these arrangements will be applied and will be absolutely respected, I had proposed that this would be done by an international supervisory representative or group. You were kind enough to inform me that the Prime Minister had agreed, in principle, to these proposals, and I consider this as an important step forward to the direction of the peace objective, which we are trying to reach. I do not think it is necessary or desirable to try to define now the details of the provisions of the minority rights, which must be included in the final solution. These can be derived from the Lausanne Treaty, the Declaration of Human Rights of the United Nations and other known texts. Without doubt there have to be amendments to correspond to the circumstances which prevail in Cyprus. In any case the task of drafting such provisions will take a long time and needs more staff than what you and I have at our disposal. The agreement for the exact provisions which must be included must, by necessity, be agreed between Greece and Turkey. It would, however, be useful for you and the Prime Minister, if I try to give you some more concrete ideas regarding the administrative arrangements which I have in mind, and the aspects of the plan of supervision. As I foresee it is likely that there will be one or two, perhaps three areas in the island in which the Turks will have the majority or almost the majority. For the time being, the Turkish sectors of Nicosia and the area which extends to the north, towards the Kyrenia range is one example of such an area. These areas would be treated as separate geographical units for administrative purposes, in the framework of the general Government organisation of the administration of the island. They could have their own special local administrations which would be directed and applied by Turkish Cypriots. If the island is annexed to Greece, these units could be called districts on condition that the District Commissioner and the largest part of his staff would always be Turkish Cypriots, and would have a considerable degree of local autonomy. Their functions would include the collection of taxes, either for local or national purposes, the cost of the local expenditure for schools, local systems of supplying water for domestic purposes, roads, drainage systems and other public works. They could also include the administration of the local police forces and the general administration of justice. In reality they must have all the jurisdiction of municipal and district governments in every respect and substantial freedom should be given in the administration of their affairs with the minimum possible interference of the Central Government. As I understand it, the organisation of the Greek administration must be such that would permit considerable flexibility in this sector. The Dode-

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Part I: Constitutional Issues canese, for instance, are administered in a somewhat different manner than the mainland of Greece. These local governments would not constitute a state within a state. In the last analysis they would be responsible to a superior authority, which may be the central government of an independent Cyprus, the supreme representative of the Greek state in Cyprus, or the Government of Greece in Athens. The district commissioner would be appointed in the usual manner by the central authority on condition that he must be a Turkish Cypriot. If the district should have a substantial number of Greek Cypriots it would be logical for the police and certain other administrative organs to include Greek Cypriot employees in the Turkish majority. A system of mixed police patrols could be used, for instance, in certain areas (this would also be useful in areas outside the Turkish Districts). In the rest of the island, where the Turkish Cypriots would continue to be a small minority, a different arrangement would be necessary. I suggest that there could be a central Turkish Cypriot administration in Nicosia, which would exercise control on the Turkish Cypriots only, in most of the same activities which the local authorities would have in the Turkish districts already referred to above. One way in which this could be done would be to agree on the boundaries of the Turkish sectors of the largest towns and to define the villages which are Turkish as well as where the Turks are in the majority. These would be under the jurisdiction of the Turkish administration in Nicosia, which will have at its head a district Commissioner, who would supervise the election or appointment of the local authorities, the administration of the police and other public functions, and of the lower courts for the hearing of cases of personal status, civil cases between Turks, criminal prosecutions against Turks and similar cases of purely Turkish interest. Similarly, the corresponding authorities in the separate geographical districts, the organisation would be answerable to the central authority of the island, whichever it might be, but it would have a substantive degree of administrative freedom. It is obvious that many aspects of this plan should be developed and be agreed by negotiations between the interested parties. My suggestions are not intended to be in any way definitive or exclusive. The application of the safeguards of human rights, the right to use Turkish special courts in certain kinds of cases and other similar privileges would be extended to all Turkish Cypriots, despite the fact that for any reason some may not come under the direct jurisdiction of either of the two Government units which I have recommended. I presume that by agreement, the legislation of the central authority of the state, there will be a special section of the legislation which would be applicable equally for all the Turkish Cypriot citizens on subjects which require special legal treatments for national, religious and customary reasons. All Turks will, of course be citizens of the state and will have the same rights and privileges with all other inhabitants.

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In Search of a Solution Despite the fact that the Greek record in the area of minorities is good, the history of the Cyprus problem and the feelings which have been created as a result of the disturbances of the last 7 months in Cyprus, have convinced me that it will be necessary in the arrangements to have special machinery to safeguard the application of such rights as would exist and the self Government of the minority. The logical manner to achieve this, in my opinion, would be the United Nations or the International Court to appoint an international Commissioner or a commission The Commissioner or commission would be in the island and would have jurisdiction and the responsibility of the supervision of compliance with the special status and of the rights of the Turkish Cypriots. There are precedents for this in the case of Danzig and the Soar, in the interval between the first and second world war. On 20 August 1964 Dean Acheson sent the following letter to Prime Minister Papandreou Dear Mr Prime Minister, May I begin this letter by expressing deepest appreciation of the help you have given to our work here in Geneva by your own constant attention and thought and by permitting Mr Sossides to join in our efforts. Today the President has informed me of the urgency which he believes imminent Soviet involvement in the Cyprus problem has imparted to our work, and because of it has asked me to let you know our joint view that only a little while is left in which a settlement can be made and to give you my own views, which he has endorsed, of the general nature of the settlement which seems to me possible and fair. I know from our conversations with Mr Sossides that you are impressed as we are here of the danger, which the Russian moves have intensified, that Cyprus will fall under Communist influence and of the farreaching effects which this will have upon the political and power situation in the Eastern Mediterranean. I am sure we agree that the danger gives Turkey and Greece a common interest far transcending the exact lines on a map to be drawn in reaching an agreement. The problems presented by both sides in reaching a settlement are political and it is from that point of view that I approach them. I am prepared to apply the utmost pressure and persuasion to get the Turks to give up any claim for sovereign territory on Cyprus, to reduce the dimensions of their requirements for a military base on the Karpas Peninsula and to settle the rights of minorities along the lines which I have discussed with Mr Sossides and which I can translate into a draft to be available tomorrow. Specifically, I would urge the Turks to limit their plan to a lease for 50 years for that part of the Karpas Peninsula running from its north-easterly end to a line drawn north and south just west of Komi Kebir. I am persuaded from the study which I have made of the situation with the aid of military advisers that

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Part I: Constitutional Issues there is a sound military justification for such a base in the defence of the approaches to the Turkish mainland and in the defence of the base itself from surprise attack. It is quite possible that to draw the Western line of this area as I have suggested would present a political problem to you at this time. This problem could be avoided by leaving the line undrawn, to be supplied after military study by the Supreme Allied Commander for Europe, with the assurance by the Government of Greece that if the line should be drawn as indicated it would be accepted. Indeed, the willingness of the Government of Greece to enter into such a settlement might be indicated to me without entering into any present direct commitment to the Government of Turkey. With this assurance I would do my best and believe I could succeed, in obtaining the agreement of the Government of Turkey not to intervene to prevent or to demand prior intergovernmental agreement before the achievement of enosis between Greece and Cyprus. Without something of this sort the Turks would surely believe themselves to be faced with having their treaty rights almost contemptuously destroyed and themselves faced with the alternatives of unconditional enosis or unconditional independence for a Cyprus under communist domination. What I have suggested will present the gravest difficulties for the leaders of both Greece and Turkey and for the peoples they lead. But I am confident that, in the face of imminent common peril, each nation can find unity at home in support of solutions which look beyond momentary controversy, to the fundamental security and welfare of great Hellenic and Turkish states and support abroad by the grand alliance of free states against interference with their execution. May I request, my dear Prime Minister, the early return to Geneva of Mr Sossides to help us to this solution. Sincerely yours, Dean Acheson Letter from Prime Minister Papandreou to Dean Acheson, 22 August 1964 Dear Mr Acheson, Ambassador Labouisse had the kindness to hand me yesterday your letter of August 20th and to inform me that your proposals have been approved by Government of the United States. 1. I wish to express my warmest thanks for admirable efforts you are making to find solution to Cyprus problem: a solution which will avert war and will restore relations between allies, members of NATO. And we sincerely desire to assist your efforts in interest of Greece, of free world and peace. I fully share your view that ‘the danger gives Turkey and Greece a common interest for transcending exact lines on a map to be drawn.’ This is why yesterday I assured Ambassador Labouisse that we accepted ‘in principle’ your proposals.

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In Search of a Solution 2. However, I deem it necessary to draw your attention upon a fundamental fact. I have impression that Government of United States may believe that if Greece accepted a plan for solution of the Cyprus question, the problem could be solved. This is not correct. Certainly our decision is of vital importance. But finally, decisive word belongs to the leadership and people of Cyprus which is now an independent state. The Turkish Government does not face such a problem as regards Turkish Cypriots who are subservient to Ankara. The problem exists only for us. If we accepted a solution which Cyprus would reject as unjust, situation would deteriorate. In such an event we may be certain that Cypriots will continue their struggle and seek aid from wherever it will be possible to obtain it: we already know from where they will ask and obtain it. For this important reason the conditions of an agreement should not be excessive so that they may be acceptable to Cyprus and thus lead us on a peaceful and definite settlement instead of coming to an insuperable deadlock. 3. As I informed Ambassador Labouisse yesterday, our Minister of National Defense, Mr Garoufalias, went to Cyprus with the dual purpose of postponing conclusion of an agreement with Moscow and sounding the policies of Archbishop Makarios. Mr Garoufalias returned today from his mission, he succeeded in preventing, for the time being, Mr Kyprianou, the Foreign Minister of Cyprus, from leaving for Moscow tomorrow, as originally planned. He also succeeded in postponing the visit of Archbishop to Cairo in order to meet President Nasser. The postponement of both trips is temporary depending on the development of situation. Mr Garoufalias also ascertained views of President Makarios. The Archbishop rejects absolutely granting of any base either to NATO or Turkey. He also envisages the abolition of British bases. 4. We would of course prefer obtaining Enosis without giving anything in exchange. This would have been fair since Turkish minority will acquire full protection under Greek administration as Moslem minority enjoys in Thrace for many years. Moreover, security of Turkey would be completely safeguarded as Cyprus becoming part of Greece would belong to NATO. Besides, since Cyprus was sold by Turkey to Great Britain the former never had any base in the island for security of Turkish state. Neither did agreements of Zurich grant Turkey such a right. We recognize, however, that under present conditions, for psychological reasons as well as for reasons of prestige, it will be difficult for Turkey to consent to union of Cyprus with Greece without obtaining something in exchange. This is why we are ready to offer special guarantees for Turkish Cypriots without impairing Greek sovereignty and unity of the state. We would also accept to grant lease of an area for a logical period for the installation of a Turkish base.

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Part I: Constitutional Issues 5. Greece could support idea of Turkish base, even if Archbishop did not agree, and could perhaps convince the great majority of Cyprus people to accept it, provided dimensions of base were limited. For instance, if they corresponded to extent of British bases in Cyprus. Your proposal, which I understand is result of strenuous negotiations, exceeds by far space necessary for establishment of a military base and has character of limited partition. Unfortunately we cannot support such a proposal. The difficulty has become greater owing to psychological conditions prevailing in Cyprus following the recent Turkish bombing of civilian population. The climate in island at this moment is most unfavourable to Turkey and NATO. It is also unfavourable to Greece due to her absence during Turkish aggression. 6. We understand that you have exhausted all means of persuasion with Turks so that they may reduce their claims. Therefore I am not addressing to you an appeal to that effect. I confess my distress and disappointment that agreement cannot be reached. It remains now for us to do all we can for maintenance of peace in island until next session of General Assembly of United Nations to which we commit all our hopes for acceptance of principle of unrestricted independence including right to self-determination. Letter from Dean Acheson to Prime Minister Papandreou, 22 August 1964 My dear Prime Minister, Thank you for your letter of August 22nd, replying to mine of August 20th. I deeply regret that you have thought it not politically feasible for the Government of Greece in the present circumstances to accept the proposals which I put to you and to the Government of Turkey. These proposals seemed to me to embody equitable, realistic and reasonable arrangements that could form the basis of an agreed solution. I was encouraged to find that my Government in Washington took the same view. However, as you know, the Government of Turkey is finding as much difficulty in accepting these proposals as you are, although it has not, as I understand it, finally rejected them. It seems clear from the attitude of the Government of Turkey that any other proposals closer to your position would, a fortiori, be unacceptable. In view of the response to my proposals, there appears to be an impasse at least for the present. I have no further suggestions as to a solution. I would hope, however, that you and your Government would consider very solemnly the dangerous alternatives to a peaceful settlement. In the final paragraph of your letter, you say it remains now to work for the maintenance of peace in Cyprus. This surely should be the goal of the Government of Greece and all other Governments concerned. The establishment and maintenance of security on the island and the restoration

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In Search of a Solution of normal life for all of its inhabitants is the essential prerequisite for avoiding the catastrophe of a military clash between Greece and Turkey. If peaceful conditions prevail, emotional pressures will be greatly reduced. Elemental protection of life and livelihood in Cyprus might produce a new atmosphere in both Greece and Turkey and permit resumption of efforts to reach a wider solution. During our latest conversations here with Ambassador Nicolareizes and Mr Sossides, I put forward some personal ideas as to what your Government might do to stabilize and normalize the situation on the island. Mr Sossides has undoubtedly reported these to you, and I hope you will give them consideration. Any harassment of Turkish-Cypriots will end whatever hope remains of a peaceful solution of Cyprus’s problems. I shall not say more, but ask you to believe that these words, in a literal sense, represent my most solemn prognosis.

19. Missed opportunity: Denktash–Clerides letters, spring and summer 1971 Denktash’s letter to Clerides, 27 April 1971

4

Dear Glafcos, In view of recent public statements by your side on the ultimate GreekCypriot policy on Cyprus I have had some doubts about the use of continuing the talks which has, as an aim, the finding of a permanent solution based on independence. As, however, your letter of 9 April 1971 (in reply to my letter of 13 March) still seems to tackle the problem on the basis of independence I thought it right to put on record my personal views and sound you on some points, before putting the whole matter to my side. It appears to me to be essential to reaffirm our terms of reference for the exploratory, informal talks which we have been having for almost three years. I believe we had agreed that we would be searching for a permanent solution based on independence and not an independence which one side or the other could utilize for furthering ‘national aims and aspirations’. In other words we would talk independence as an end in itself and not as a means to an end. Secondly, we would be talking – as indeed we have – purely on the internal Constitutional matters and would not be tackling the international status of the independence which we would suggest to our respective sides, this being a matter to be discussed by all the interested parties at a later stage. Thirdly, whatever we discussed was to be – as you reiterate in your above referred letter – ad referendum to our respective principals in the form of a

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Part I: Constitutional Issues package deal and, therefore, until there was an agreed package by us, there was no binding agreement on any specific matter. I shall be grateful if you kindly confirm that the above statement also conveys your understanding of the position. In view of the serious doubts raised by recent statements made by your side indicating utter disagreement of the first condition set out above, I should like to point out that in trying to settle our problem on the basis of a package deal I have always taken it for granted that the remaining parts of our Constitution will stand in its present form, subject to such minor adjustments necessitated in the light of agreement on the package deal. In our discussions on the executive I had indicated my readiness to forego the veto rights in Foreign Affairs, Defence and Internal security, but I note from your letter of 9 April 1971 that your position vis-à-vis the vice-president is quite different viz, you would consider having a vice-president if he were merely a figurehead. I should like, therefore, to underline the fact that apart from readiness to forego these veto rights I am not in any position to write off the existing duties and powers of the vice-president. I feel, very strongly, that in our form of society peace, understanding and mutual trust can only be cultivated by the two Supreme Heads of the Executive working in full harmony for the good of Cyprus. On the question of the Communal Chambers your stand has been that the Turkish side can continue to have its Communal Chamber as set out under Part V of the Constitution with all its powers and functions as at present. You have rejected my offer that your side should reconstitute the Greek Communal Chamber which has been ‘abolished’ unilaterally since the troubles. I shall take this matter up below in considering the package deal, but would like to underline, once again, the political position which has arisen due to your refusal to reconstitute the Greek Communal Chamber: All religious, educational, cultural and teaching matters; personal status; marriage, divorce; Courts dealing with Civil Status and religious matters; charitable and sporting foundations, bodies and associations created for the purpose of promoting the well-being of the respective Communities; taxation for above purposes; promoting the aims pursued by the Municipalities; controlling producer’s and consumer’s co-operative and credit establishments, supervision of municipal functions are amongst the powers and duties of the Communal Chambers. After abolishing the Greek Communal Chamber your side has (a) Created an unconstitutional ministerial post viz: Minister of Education of Cyprus when this Ministry deals purely with the Greek educational affairs. This is a political usurpation of our rights and an imposition upon us which we cannot accept.

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In Search of a Solution (b) You have put a number of priests on the pay-roll of the Republic thereby forcing the Turkish-Moslem taxpayers to finance Greek religious affairs and thus cutting across the whole foundation of keeping such matters as Communal matters. (c) The Greek co-operative activities have become Governmental activities. (d) Greek Municipalities are run by bodies appointed by the ‘government’. (e) Greek Social and Sporting Foundations, bodies and associations are now part and parcel of matters supervised by ‘government’. Your claim, therefore, that ‘the Greek side shall not re-establish its Communal Chamber’ is not purely a Greek matter to be decided by your side; such a decision involves the political and financial rights of the Turkish community and upsets the political, financial and social equilibrium … set up by the 1960 Agreements to the detriment of the Turkish community. If we are to agree to the abolition of the Greek Communal Chamber (on the assumption that later we may find a formula whereby we may agree to the non-establishment of the Greek Communal Chamber) we must be assured of the following: (a) The unconstitutional post of the ‘Ministry of Education of Cyprus’ must be abolished and Greek Education as such must be given to the President; the Turkish Education to the Vice-President. By decree they can each nominate a person to take charge of the Greek and Turkish education respectively. (b) The salaries of the priests must be taken out of the budget of the Republic. (c) Financial aspect of giving the functions of the Greek Communal Chamber to the ‘governmental’ departments must be reviewed and adjustments must be made of the funds which will be given to the Turkish Communal Chamber so that we do not suffer any discrimination. For the same reason the Greek Co-operative Movement must be divorced from ‘Governmental’ union or some formula, similar to the one suggested above on education must be found for the two Co-operative Movements. All in all, I hope you’ll agree that the wisest way will be to retain the structure set out in our Constitution and to retain the two Communal Chambers in their present form. If we do not do so the parity of treatment and status of the ‘Communal Affairs’ of the two communities will have been destroyed and injustice done to the Turkish side as already done in the question of forced payment of priests’ salaries! As regard Article 171 on Sound and Vision broadcasting: I have suggested that this Article should be redrafted subject to the right of the Turkish Community to set up its own sound and vision broadcasting. I have noted that you do not confirm, in your letter of 9 April, the fact that you had stated

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Part I: Constitutional Issues to me your agreement on the incorporation of Turkish municipal areas in the Turkish local authority context in conjunction with the grouping of such authorities (vide my letter of 13 March). I take this to be an oversight, and would like confirmation please. 1. I feel it necessary to know your final views on the above, as this knowledge will have an important bearing on our evaluation of the Greek Cypriot policy on Cyprus. In view of recent public statements on Enosis, my side finds itself in utter confusion and the belief that we are being invited into an agreement on independence which will be used as a spring-board for Enosis has gained ground. I mention this in order to enlighten you on the real purpose of my seeking clarification on the above points, which, in view of what has been said and done recently by your side, is of utmost importance to us. 2. Assuming that your answer on the above will be affirmative my views on the package deal are as follows: The police: (a) On the question of the police the Turkish side has indicated its willingness to agree i To reduce its share of man-power from 30% to 20% as requested by you; ii To amalgamate the gendarmarie with the police as requested by you; iii To retain Article 132 whereby ‘forces stationed in parts inhabited in a proportion approaching one hundred per cent only by members of one Community shall belong to that community’; iv To retain Article 131 which provides that the Head and the Deputy Head shall not be of the same Community; in return for having police or peace-keeping officers with jurisdiction solely in local authority areas. In all parts of the world where local authorities exist, they have their own peace-keeping authorities. This, in no way hampers the smooth functioning of the Central Police Authorities in matters which fall within their jurisdiction. Local police will be there to help the Central police authorities to carry on with their duties, while giving to the local people that sense of security which is so vital in view of the behaviour of the Greek policemen during the inter-communal troubles. In view of the important concessions which we are prepared to make on (d) and (ii) above I hope you’ll agree to the setting-up of local authority police and thus complete the discussion on this matter. The judiciary (b) As regards the judiciary

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I would be prepared to accept your offer of 5 Greek 2 Turkish Judges (provided provision is made for Turkish judges to sit on every appeal in which Turks are involved) if you will agree to my proposals for retaining Article 159. On the question of the Courts one matter remains unsettled, although we had discussed it, in the early stages of our talks, and that is, the nature and character of the Courts which will be dealing purely with ‘local authority’ matters. I presume elected or honorary justices of the peace could attend to such matters.

ii

If you agree to accept 6 Greek and 3 Turkish judges in the Supreme Court, subject to the provision above, I would be willing to make Article 159 optional for the litigants as proposed by me during our talks. In case (i) above is agreed upon it will be essential to make a transitional provision for securing the seat of our third judge in the Supreme Court pending retirement.

The legislative (c) On the legislative, in view of your agreement that i

The Constitution shall not be amended except with the two-thirds votes of the Turkish Members and your acceptance of the present electoral procedure whereby members of the House are elected on separate Greek and Turkish electoral rolls I am willing to agree to your proposal of having two vice-presidents (one Turkish) of the House and to have the president and the vice-presidents elected by all the members jointly if you agree that the House will have 60 Greek and 15 Turkish members, instead of 48 Greeks and 12 Turks as proposed by you. I am also prepared to abandon the present system whereby any amendment of the election law should be with the majority votes of the Turkish members if you agree that the first Election Law be drafted and agreed upon prior to the signing of the agreement in general subject to its binding constitutional effect for the purposes of its amendment later on.

The executive (a) Subject always to the basic requirement for all alternatives, that Turkish representation all through the political and administrative hierarchy shall be not less then 20%, I propose the retention of the present system as set out in the Constitution, subject to the removal of the right of veto and consideration of what new powers will be given to the President and the Vice-President in the light of our overall agreement

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Part I: Constitutional Issues Alternatively (b) I am willing to consider the abolition of the Council of Ministers and adoption of a full presidential system as in USA subject to the retention of the powers of the Vice-President as at present and consideration of what new powers will be given to the President and the Vice-President in the light of our overall agreement. Alternatively (c) I am willing to consider the abolition of the existing Presidential system subject to provision that where the president is a Greek the Prime Minister shall be Turkish (elected by Turks) with adequate Turkish seats in the Cabinet, (as in Lebanon) and agreement on the rights and powers of the PM and the Cabinet, In (a), (b) and (c) above the question of Minister of Education should be settled in the light of observations made above on this point. Two junior ministerial posts (one Greek one Turkish) may be considered as an alternative to my suggestions above, responsible to the President and VicePresident respectively. In Belgium there are, I understand, two such ministries. Local Government: (including Turkish municipal areas) I propose that (a) The powers, duties, and jurisdiction of the local authorities should be embedded in great detail in the Constitution. Your offer that this should be done through legislation to be passed by the House is not acceptable to us in view of the past record of the House which had stalled on the passing of the necessary legislation for the municipalities and thus created a political impasse on a purely municipal issue. (b) That the Central Authority or Coordinating body for local governments should be i The Greek and Turkish Communal Chambers, or Alternatively ii The president and a committee appointed by him from amongst the elected Greek members, for the Greek local authorities; the vicepresident (or the prime minister) and a committee appointed by him from amongst the elected Turkish members for the Turkish local authorities; or Alternatively iii Two junior ministerial posts (one Greek and one Turkish) to be created to look after Greek and Turkish local authority affairs responsible to the

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In Search of a Solution President and Vice-President respectively; I cannot accept your offer that the autonomous local bodies should be under the District Officer for any purpose; because this is not compatible with their autonomy. In case of ultra vires the Courts will have the right to look into any complaint lodged by any person or authority of the Republic. 4. So far I have indicated to you my willingness to advice my side to make concessions on practically all points which you have raised with me in return for agreement on local autonomy affairs – the only ground on which the Turkish side has put forward balancing demands. Your side has shown willingness to pocket all the concessions without any reciprocity on any Turkish demand. Your list of concessions on page 6 of your above-referred letter is somewhat misleading. The Turkish side has not asked for the amendment of the Constitution. It is the Greek side which has put forward certain proposals for amendment and practically on all these points we have tried to accommodate you. Our counter offers made with a view to softening the Greek blow of drastic amendments is being treated by you as ‘acceptance of Turkish offers’, whereas these were indications to you as to the limit of our accommodation in agreeing to your proposals. The only grounds on which we have asked for something has been the local autonomy, and on this ground you have not even agreed to the Status of the authority which we are to set up. Our demand has been for local autonomy, your offer has been on limited local authority. In order to complete this review I would like to put on record, once again, the vital concessions which I have indicated willingness to make; concessions, for which, the Greek side seems determined not to give anything in return, thus raising the pertinent question whether the exercise of the local talks was merely for amending the 1960 Constitution in such a way as to make the Independent Republic of Cyprus a convenient springboard for Enosis! My whole purpose in these talks has been to amend the Constitution in such a way as would satisfy your side’s demands without diminishing in any way or form the juridic status of the Turkish Community and without imperiling the ultimate safety of the independence of Cyprus: Concessions which the Turkish side has shown willingness to make: (a) Abolition of the provisions of the Constitution which necessitated the appointment of non-Cypriots to the posts of Presidents of the Supreme Constitutional Court and the High Court; (b) The amalgamation of the Supreme Constitutional Court with the High Court; (c) The amalgamation of the gendarmerie with the police; (d) Reduction of Turkish participation from 30% to 20%;

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Part I: Constitutional Issues (e) Abolition of the provision of the Constitution requiring majority vote of both Communities in the public commission; (f) Abolition of the provision of the Constitution requiring separate majority votes in the House on legislation dealing with all taxation matters, elections, municipalities; (g) Abolition of veto powers in Foreign Affairs, Defence and Internal Security; (h) Reduction of Turkish participation in the Army from 40% to 20%; (i) Making it optional, for litigants to resort to the protection of Article 159; (j) Reduction of Turkish participation from 30% to 20% in Town Planning Affairs as per Article 176. I hope the above will give us a new ground for tackling the problem anew in a spirit of give and take. So far the Turkish side has been on the giving end; I hope your side will find it possible to be a little generous and understanding so that we can reach agreement on all outstanding issues. Yours sincerely, Rauf R. Denktash President, Turkish Communal Chamber The junta speaks and Makarios responds to the Denktash positions, June 1971 The Greek government, especially the junta, was hardly a constructive force in the Cyprus imbroglio, but from viewing Denktash’s letter of April 1971 we can see that Athens was trying to get Makarios to declare victory and withdraw. In other words, Denktash and the Turkish-Cypriots (and by implication Turkey itself) had accepted key pieces of the Greek-Cypriot position and Makarios should thus be able to live with the Turkish-Cypriot insistence on local self-government. Here is a commentary on Clerides’s thinking at the time, based on Makarios’s response to the Greek colonels and, in effect, to Denktash. Then Clerides’s official letter to Denktash follows. In his memoirs, Clerides acknowledges that ‘a major mistake was committed by Makarios’ and the government in not accepting the advice the letter contained. The letter correctly stated, Clerides admits, that Denktash had accepted all ‘13 points’ forwarded by Makarios in 1963, and in the bargain the Greek-Cypriots were to provide local government in a separate, communal structure. The Turkish negotiators were willing to live with the Greek-Cypriot proposals with respect to the powers and functions of municipal governance and hence, Clerides writes, ‘we were wrong to refuse the Turkish proposal’, which would provide that local authorities would be placed jointly under supervision of the president and the vice-president of the state. ‘Generally speaking,’ Clerides continues, ‘all the advice given in the Greek Note was sound.’ It maintained the concept of a unitary state and did not introduce

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In Search of a Solution federalism. It would have dealt with all the constitutional issues that provoked Makarios’s 13 points in 1963. ‘The inexperienced Greek-Cypriot leadership,’ Clerides says, ‘not only rejected … the more mature advice of the “mother”, but also accused her of having conspired with Turkey, behind the “daughter’s” back, to sell her down the river.’ The letter from Makarios, Nicosia, 24 June 1971. Dear Mr President, I forward, attached to this letter, the letter of Mr Glafcos Clerides, as approved by the Council of Ministers, which replies to the letter of Mr Denktash of 27th April 1971. The tone and the content of the reply of Mr Clerides leaves the door open for the continuation of the talks, as recommended by the Greek Government and in accordance with our own intentions. I am of the opinion that the reply to Mr Denktash does not offer to the Turkish Cypriots a pretext to interrupt the dialogue, except of course, if its interruption has in any case been decided. In drafting the reply we had in mind the views and recommendations the Greek Government forwarded to us in the Note of 9th June 1971, as well as the letter addressed to me by your Excellency, dated 18th June 1971, which was brought by Ambassador Angelas Horafas. I regret, because, due to differences of opinion on certain views of the Greek Government, the reply to Mr Denktash has not been drafted in accordance with such views. As your Excellency recollects, I held the view originally that we should not accept any discussion on the issue raised by the Turkish side on local government, because even the mere acceptance of discussion would create an issue, which is not even foreseen in the provisions of the 1960 constitution. We accepted, however, to discuss the issue because of the insistent advice of the Greek Government, in order to demonstrate a spirit of goodwill towards the Turkish Cypriots. it was agreed with the Greek Government that it would be possible, without risk to grant local government of the first degree having as basis the village level. Subsequently, in the course of the negotiations, we accepted local government of the second degree having as a basis groups of villages. Despite our original objections we accepted that the grouping of villages or the areas would be defined on the basis of racial criteria. Emphatically, however, it was stressed, both by the Greek and Greek Cypriot side that in no case ought the Turkish proposal regarding the creation of a central local government authority be accepted. I consider that it would constitute a serious change of position from the above if we were to accept, as recommended by the Greek Government, a Turkish Minister or Deputy Minister, who would have competence on matters of local government. In fact we would have accepted the central local government authority in the person of the Minister or the Deputy Minister.

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Part I: Constitutional Issues In your letter addressed to me you express the view that the presence in the Council of Ministers of a Turkish Minister with competence on matters of local government in its entirety, not only does not weaken, but on the contrary underlines the unity of the state. I disagree with this view. The fixing of areas of local government on racial criteria breaks the unity of the state at its base, and this separatism continues upwards by appointing a Turkish Minister. The fact has to be taken under consideration that he would exercise power and supervision on already separated first and second degree level authorities of local government. He would both in form and in substance constitute the central local government authority. Placing, on the other hand, the matters of local government of the Greek Cypriots under a Turkish Minister, for the sake of apparent unity, I consider nationally unacceptable. I could speak more extensively on this point, but I do not consider it necessary to expand on it. In view of the above it is not necessary to refer to the Turkish demand regarding separate Turkish local police. The Greek Government believes that with the sole exchange of satisfying, to a certain extent the Turkish Cypriots on the subject of local government the present enclaves would be dissolved, the Turkish Cypriots would accept practically all the ‘13 points’ of my old proposals, and this would constitute an important gain. But, by accepting local government, as proposed, the enclaves, are not dissolved. On the contrary, they are made permanent and are legitimised. It is true that most of the 13 points of my old proposals, which were formulated under different circumstances, are accepted. The exchange which is demanded, in any event is too large and its acceptance would present the Zurich and London Agreements as a better situation, despite the fact that we do not desire a return to them. I have referred particularly to the subject of local government because this constitutes the greatest obstacle in the talks. On other points of disagreement the reply to Mr Denktash speaks with argumentation and I do not consider it necessary to make reference to them in this letter. The line, which we have drawn, in common both on the constitution and the international aspect of the Cyprus problem and their interconnection, is the most appropriate. I believe that deviation from this line will lead to a solution which would be nationally harmful. In your letter, Mr President, you reject the circulating rumours, which allege that your proposals of the Greek Government have been accepted in advance by Turkey and that in close understanding with Turkey you plan a conspiracy against me. I wish to assure you that I have never wanted to be part of such rumours. In conclusion, Mr President, I refer to the last paragraph of your letter, which states that if the proposals of the Greek Government are not accepted the Greek Government would find itself faced by ‘hard necessity to take those

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In Search of a Solution measures, which national interest and the best interests of the Cypriot Hellenism demand, irrespective of how bitter they might be’. The content of this paragraph creates the impression of a threat, though I find it difficult to accept this interpretation or impression as accurate. If, however, the said paragraph really constitutes a threat, I regret to say that an unacceptable situation is created, which as the person on whom Cypriot Hellenism has placed its trust, I cannot ignore. It would, consequently, be desirable that the necessary clarifications should be given, in order to be able to continue our harmonious co-operation for the benefit of the common national cause. With heart-felt wishes, Makarios Clerides responds to Makarios Makarios asked for Clerides’s views before sending a letter drafted to respond to Denktash. Here is a summary of the points he made: (1) Clerides argued that local self-government was a legitimate subject of negotiation, despite its absence from the London and Zurich agreements. ‘Denktash from the first meeting in Beirut offered to make concessions regarding the executive, the legislative, the judiciary, the civil service and the police, on condition that we would accept autonomy in local government.’ This was a principal, possibly the principal, position of the Turkish-Cypriots; to ignore it would have been tantamount to negotiating in bad faith. (2) Clerides also rejected the notion that the integrity of a unitary state was challenged by having a Greek minister and Turkish deputy minister overseeing local government authorities. The notion that a central authority of Turkish local self-government was being created also was rejected by Clerides. Such authority would be at the direction of the constitutionally supreme Council of Ministers, and legislating power would remain in the hands of the House of Representatives. (3) Accepting areas of local self-government on a communal basis was, in the thinking of some, tantamount to legalizing the Turkish enclaves. Clerides rejected this, saying that it ‘demonstrated how limited was our political thinking and what a narrow concept we had regarding the realities of everyday life’. Makarios responded to Clerides by saying: ‘your views legally may be right, but the problem is not legal, but political. If our objective is to reduce the excessive rights which the Zurich Agreements gave to the Turkish Cypriots and make the Constitution workable, we should not add other rights in the place of those we subtracted and thus create again an unworkable Constitution.’ The letter below was then sent without any revisions.

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Part I: Constitutional Issues Clerides’s reply of 26 June 1971 to Denktash’s letter of 27 April 1971 Dear Rauf, At our meeting of the 28th of April, 1971, you handed to me a letter dated the 27th of April, 1971, in which you raised a number of issues and stated the ‘package deal’ proposals of your side. I have considered carefully every suggestion and every issue raised in your letter with an open mind having refrained from acting on first reactions or on the basis of any preconceived ideas. Before answering the questions raised by you let me state at the outset that my side has always held the view and continues to do so that the Cyprus talks constitute the only right procedure through which a search could be made for the purpose of finding a feasible solution of the Cyprus problem based on an independent unitary state. From this view my side has never wavered despite certain public statements by Turkish leaders from which it appeared that the objectives of your side were not consistent with a unitary state. You state, however, in your letter that you had entertained some doubts about the use of continuing the talks which doubts you attributed to recent ‘official’ statements by my side on the ultimate Greek-Cypriot policy on Cyprus. Similar doubts you expressed to me at our meeting of the 29th of March, 1971, and informed me that you would discuss both with your side and the Turkish Government, the usefulness of continuing the talks. I explained to you, at the time, that there has been no change of the policy of my side and assured you that my instructions were to seek a solution of the constitutional aspects of the Cyprus problem in the context of an independent Cyprus. Moreover, on the 6th of April, 1971, the Cyprus Government, following a special Council of Ministers meeting stated that its basic line of policy remains unchanged and continues to be the pursuit of the local talks, which were the only correct procedure for a solution of the Cyprus problem. In addition to the above, on the 9th of April, I addressed a letter to you repeating in writing my oral ‘package deal’ proposals of the 30th November, 1970, informing you at the same time that, if there was favourable reaction by your side, I was ready to proceed with them. Referring to our talks you correctly describe them as exploratory and informal. It is because of this informality that we have not formulated agreed terms of reference. We both, however, understood that our task was: (a) To search for a solution of the constitutional aspects of the Cyprus problem in the context of an independent unitary state. (b) To concern ourselves solely with constitutional issues, as indeed we have up to now. (c) Anything agreed upon would be ad referendum to our respective sides. It was also well understood that all issues, beyond constitutional and 150

In Search of a Solution internal ones, would be discussed at a different stage and level. Having given you my understanding of our terms of reference let me reply to your question whether I am aiming at a provisional solution. You know that I have never made any suggestions for an interim or provisional solution. My instructions were to search for a lasting solution based on the independence and sovereignty of a unitary state of Cyprus. It is for this reason that my side’s proposals on the Legislative, while safeguarding clauses conferring specific rights on the Turkish community, contained other provisions enabling the people of Cyprus, in the course of time, to amend legally and smoothly the constitution of their country, should experience gained, political, social and economic progress in the developing state of Cyprus make such necessity felt. During our talks, having examined the basic constitutional issues and having submitted written proposals on them, we prepared and signed, after two and a half years of difficult negotiations, a document showing points of agreement and disagreement. On the 30th November, 1970, basing myself on the points of agreement and disagreement, as shown in the above referred document, I made, by way of a ‘package deal’, and in an effort to bridge the differences, further substantial concessions. Your side, however, for reasons best known to it, has chosen some time after my ‘package deal’ proposals to widen the gap by reopening issues agreed upon, such as the re-establishment of the Greek Communal Chamber and by raising new ones. Coming now to your proposal to re-establish the Greek Communal Chamber, made for the first time on the 25th of January, 1971, I would like to begin by refreshing your memory as to the correct facts. The Greek Communal Chamber ceased to exist on the 31st of March, 1965. The intercommunal talks began in June, 1968. By the 18th of August, 1970, when we signed the document showing points of agreement and disagreement, we had discussed all the constitutional aspects of the Cyprus problem and exchanged written proposals without at any time your side raising the issue of re-establishing the Greek Communal Chamber. It is because we have agreed that only the Turkish Communal Chamber would be retained, that the detailed provisions made in our jointly signed document, were expressly confined to the preservation and entrenchment of its rights and powers without referring to the Greek Communal Chamber. You contend that by the abolition of the Greek Communal Chamber a number of ills have befallen the Turkish Community i.e. a political usurpation of Turkish rights has taken place, Turkish-Moslem taxpayers have been forced to finance Greek religious affairs, the Greek co-operative activities have become governmental activities, Greek municipalities are run by bodies appointed by the Government and, finally, that Greek social and sporting foundations are supervised by the Government. Let me deal briefly with these contentions and bring into focus the correct picture. Under the 1960 Constitution certain matters termed as ‘communal’ were

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Part I: Constitutional Issues assigned to the Greek and Turkish Communal Chambers respectively. It follows, therefore, that the abolition of the Greek Communal Chamber in no way affects those rights which under the 1960 Constitution were assigned to the Turkish Communal Chamber. Furthermore, in addition to the safeguarding of the maintenance of the Turkish Communal Chamber and its functions, I have made proposals designed to unburden it from its heavy and difficult-to-bear financial load of providing the cost of TurkishCypriot education. From what I have stated so far it is evident that there is no usurpation of Turkish rights nor will there be any resulting financial disadvantage to the Turkish Cypriots. On the contrary, by virtue of the abolition of the Greek Communal Chamber and the transfer of its powers and functions to the Council of Ministers and the House of Representatives, in both of which there will be Turkish participation, the Turkish Members in both bodies will have a say on matters previously exclusively reserved to the Greek Communal Chamber, consequently Turkish political rights have in effect been extended. I have also examined with care your complaint that, after the abolition of the Greek Communal Chamber, the Government has put a number of priests on the ‘pay roll’ of the Republic thereby forcing the Turkish Moslem taxpayers to finance Greek religious affairs cutting thus across the whole foundation of keeping such matters as communal affairs. Since you correctly state that, under the 1960 Constitution, religious matters constituted communal affairs falling within the jurisdiction of the respective Communal Chambers and since that Constitution gave power to the House of Representatives to vote additional subsidies to enable the respective Communal Chambers to meet their needs on matters falling within their respective competence, it follows that the allocation of money by the House of Representatives for the payment of increased salaries to Greek Orthodox priests, does not cut across the purposes of communal affairs as alleged by you. With regard to your contention that the Turkish taxpayers are forced to pay taxes to finance Greek religious affairs, may I draw your attention that the amount annually allocated for salaries to priests is 200,000 Cyprus pounds in exchange for property given by the Church to the state to the extent of 15,000 donums. I also wish to inform you that the Government is prepared to make similar arrangements for a pro rata state subsidy to the Turkish Communal Chamber for the payment of increased salaries to Moslem hodjas. You have further complained that after the abolition of the Greek Communal Chamber, Greek co-operative activities have become governmental activities. Your complaint is based on incorrect facts. As a result of the transfer of the powers of the Greek Communal Chamber to the Executive and the legislative the question arose whether the Government would exercise

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In Search of a Solution control over Greek co-operative affairs. The Government, acting on the advice of the Attorney-General, stated to the House that it has no authority on co-operative matters. With regard to your contention that Greek sporting foundations and associations are now part and parcel of matters supervised by the Government, I wish to inform you that Greek sport clubs and associations, on matters relating to their sport activities, are guided and supervised by an independent authority created by law. Finally, I do not think I need dwell at length on your allegation that since the abolition of the Greek Communal Chamber, Greek municipalities are run by bodies appointed by the Government. It suffices to point out that since the time Cyprus became independent in 1960, no municipal elections were held either for the Greek or the Turkish municipal corporations in view of the disagreement in defining the respective boundaries of such municipalities. The life of the Greek and Turkish municipal corporations was prolonged from time to time by laws enacted by the House. When this was no longer possible, as an interim measure of necessity, the Government appointed members to the Greek municipal corporations in order to fill vacancies. Let me now sum up briefly the position of my side regarding the issue of the Communal Chambers. (a) My side agrees that the Turkish community shall continue to enjoy full autonomy on matters of religion, education, culture, personal status and on such other matters as was provided in the 1960 Constitution by retaining the Turkish Communal Chamber and all provisions of that constitution in so far as they relate to the Turkish Communal Chamber, as agreed during our talks. (b) In order to relieve the Turkish Communal Chamber from the financial burden of the cost of Turkish education, the state will undertake to bear the total cost of Turkish education on the basis of the formula already agreed by us without any right of the State to interfere in the matters falling within the competence of the Turkish Communal Chamber. (c) My side does not, however, wish to enjoy autonomy on such matters and is not, therefore, prepared to re-establish the Greek Communal Chamber. It will leave matters falling in the competence of the Greek Communal Chamber to the Executive and the Legislative, despite the fact that in both those bodies there will be 20% Turkish participation, relieving thus the taxpayer from the added cost of the Greek Communal Chamber. Bearing in mind that we agree that the number of Members of the House of Representatives will be increased from 50 to 75 and that the Government will contribute towards the cost of local Government authorities, my side’s refusal to add the financial burden of a third Chamber on the taxpayers in general and on the Greek Cypriots in particular, who constitute 82% of the taxpayers

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Part I: Constitutional Issues in Cyprus, should be understood. The objects of good Government are not compatible with burdening the citizens with added taxes to cover the cost of institutions which are neither necessary nor wanted, but to conserve revenue and utilize it for the development of the country raising thus the standard of living of the people. Regarding the suggestion contained in your letter for separate Turkish sound and vision broadcasting, this matter has not been raised or discussed in the past. It is for this reason that the document signed by us, showing all points of agreement and disagreement, contains no reference to it at all. In accordance with my practice of examining every suggestion made by you I am ready to consider this matter and appraise you of the practical difficulties I see in your proposal. Providing radio and television services island-wide by separate stations for the Greeks and the Turks will be an extremely costly matter. Not only two separate stations will have to be set up, but also two separate authorities, thus increasing the cost. Further the revenue derived from radio and television licences will have to be apportioned between the two authorities, with the result that neither will be financially viable and therefore heavy Government subsidies will be required to augment their income, which, of course, will have to be borne by the taxpayer. If on the other hand Greek and Turkish listeners or viewers are made to pay licences to both authorities for their receivers, since in fact they will generally be able to follow the programmes of both stations radio and television will become too expensive for the majority of the people of Cyprus who, as you know, are in the lower income brackets. These are some of the practical difficulties which appear to me at first sight to be formidable. I have so far dealt with all the issues raised in that part of your letter which precedes your ‘package deal’ proposals, with the exception of certain issues raised by you with regard to the office of the Vice-President, which I feel can be more conveniently examined together with your proposals on the Executive. You begin your ‘package deal’ counter-proposals with the Police. For the sake of convenience I will follow the headings of your counter-proposals. The Police On the question of the Police we are in agreement on the following points: (a) The Turkish-Cypriot participation in the Police Force will be fixed at 20%. (b) The Police and the Gendarmerie will be amalgamated. (c) Enlistments and promotions will be made on merit by a Police Commission, due regard being had to the implementation of the 20% proportion of the Turkish-Cypriot participation. (d) Police Forces stationed in parts of the territory of the Republic inhabited

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In Search of a Solution by mixed population of Greeks and Turks will consist of Greek and Turkish Members of the Force proportionately, as far as practicable, to the percentage of the population of the relevant area. In an effort to bridge the differences and further to my proposal that Police Forces stationed in areas of the Republic where the substantial majority will be Turks will consist in the substantial majority of Turkish members of the Force, I am now prepared to accept that where the majority of the Turkish Cypriots in an area approaches 100%, the Force will consist of Turkish Cypriots. In addition, provided that you will agree that the numerical strength of the Police will be regulated by law and that the Head and the Deputy Head of the Police will be appointed by the President of the Republic, I am prepared to accept your suggestion that the Head and the Deputy Head of the Police shall not be of the same community. You suggest that the local authorities should have their own peace-keeping forces to help the Police to carry out its duties and give at the same time, a sense of security to the local people, which is so vital ‘in view of the behaviour of the Greek Policemen during the intercommunal troubles’. I do not think that it is necessary, for the purpose of this letter, to dwell on allegations made by your side regarding the behaviour of Greek-Cypriot Policemen or to voice complaints of my side. Even if you are right in suggesting that it is necessary to give a sense of security feeling to the local inhabitants, I still do not see the necessity for separate Police Forces under the local authorities. If, indeed, there is any need to give a sense of security feeling to the local inhabitants, this is provided for by the fact that in areas inhabited almost exclusively by Turkish Cypriots, the Police will consist exclusively of Turkish Cypriots, in areas predominantly inhabited by Turkish Cypriots the Police will consist predominantly of Turkish Cypriots and in areas where the population is mixed, the composition of the Police Force will reflect that of the population of the area. Finally, I am prepared to agree that local Government authorities will have civilian inspectors with jurisdiction solely to enforce the by-laws, regulations and orders made by the local Government authorities on matters falling within their competence. The Judiciary With regard to the Judiciary I am prepared to accept: (a) That the composition of the Supreme Court shall consist of six GreekCypriot Judges and three Turkish-Cypriot Judges as suggested by you. (b) That the Judges of the Supreme Court shall be appointed by the President of the Republic and that the President, shall appoint as Turkish Judges of the Supreme Court the candidates for whom the Vice-President has expressed preference, as per your alternative suggestion in the document signed by us showing points of agreement and disagreement.

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Part I: Constitutional Issues (c) I am equally prepared to agree that Article 159 of the Constitution shall be optional, in the sense, that the Judge who has jurisdiction shall try the case, irrespective of the community to which the litigant or the litigants belong, unless the litigant or one of the litigants invokes its provisions. Further I am prepared to accept your suggestion to have honorary Justices to try cases arising from regulations, by-laws and orders of local authorities, provided the appointments of such honorary Justices will be made by the Supreme Council of Judicature which, as we have already agreed, will be making all judicial appointments except appointments to the Supreme Court, and that the law providing for the qualifications of honorary magistrates, defining their jurisdiction, powers and functions, will be enacted by the House of Representatives in the same manner as the House enacts the Courts of Justice Law. The Legislative On the Legislative we are now in agreement on the following points: (a) The House of Representatives shall consist of 75 Members i.e. 60 Greek and 15 Turkish. (b) The Greek and Turkish Members will be elected on separate electoral rolls. (c) The House will elect its President and two Vice-Presidents, one of whom shall be Turkish. (d) The President and two Vice-Presidents will be elected by all the Members of the House jointly. With regard to amendments of the Electoral Law and the Constitution we have already agreed, as shown by the document signed by us on the following. Decisions of the House shall be taken by a majority vote except in the cases: (a) Of the Electoral Law and any amendment thereof. (b) Amendments of constitutional clauses where a two-third majority shall be required. Provided that for the amendment of the constitutional clause expressly conferring specific rights on the Turkish Cypriots the above stated majority shall include at least one-third of the votes of the Turkish Members of the House. Rights Entrenched by the Constitution The rights hereinbelow stated for the Turkish Cypriots shall be suitably drafted into constitutional clauses and shall be entrenched in the Consti-

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In Search of a Solution tution. Such rights shall not be changed except with a two-third majority of the House, which shall include at least the three-fourth majority of the total number of the Turkish Members. These rights are as follows: For the sake of brevity I will not set out in this letter the seven agreed subparagraphs defining the rights to be entrenched. It suffices to say that we have defined and enumerated them exhaustively and are rights dealing with the autonomy of Turkish Cypriots on religious matters, personal status, education, schools, culture, charitable, cultural, social and sporting organisations and Turkish co-operative societies. It follows from what is stated above that we have agreed that constitutional clauses conferring special rights on the Turkish Cypriots fall into two categories: (a) Clauses which, in addition to the rights common to all citizens, confer specific rights on the Turkish Cypriots. Such clauses in order to be altered will require a two-third majority of the House, which shall include at least one-third of the votes of the Turkish Members. (b) Entrenched clauses, conferring autonomy to the Turkish Cypriots on matters of religion, personal status, education, culture etc. Such entrenched clauses in order to be amended, will require a two-third majority of the House, which shall include at least a three-fourth majority of the Turkish Members. As the Electoral Law does not fall in the category of rights which we have agreed to entrench in the Constitution but, as we have now agreed that it will confer the specific right to the Turkish Cypriots to elect their representatives on separate rolls, I am prepared to agree that the Electoral law shall require for its amendment the same majorities as that of Constitutional clauses conferring specific rights to the Turkish Cypriots, i.e. a two-third majority of the House which shall include one-third of the votes of the Turkish Members of the House. Subject to the above I have no objection to your suggestion that the Electoral Law should be agreed in advance and enacted by the House. The Executive We have so far agreed on the following points: (a) That Turkish participation in the Executive shall be fixed at 20%. (b) That there shall be a Turkish Vice-President elected by the Turks. (c) That the veto rights on foreign policy, defence and internal security shall be abolished. You refer to my proposals regarding the Vice-President, contained in my letter of the 9th of April, and you interpret them as aiming to set up a VicePresident who is a mere figurehead.

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Part I: Constitutional Issues I cannot accept your interpretation which is based on the fact that I have proposed that the President of the Republic alone shall promulgate the laws and decisions of the Council of Ministers, the House of Representatives, shall sign the instrument of appointment of Ministers, High Court Judges and independent officers of the Republic and shall exercise the right of return of laws and decisions of the House for reconsideration. I know of no state, irrespective of the diversity of the composition of its population and its constitutional system, whether federal, cantonal or otherwise, where the above functions are exercised jointly by the President and the Vice-President of the state. I have proposed that the Vice-President will recommend to the President, who shall act on such recommendation, Turkish Cypriots to be appointed as Ministers, Supreme Court Judges and independent officers of the Republic. Moreover the Vice-President will have the right and duty to challenge before the Supreme Court: (a) Any law or decision of the House of Representatives or the Budget approved by the House on the ground that it discriminates against the Turkish community. (b) Any law or decision of the House on the ground that it is in conflict with the competence of the Turkish Communal Chamber. Further the Vice-President will promulgate all laws and decisions of the Turkish Communal Chamber and will have, prior to promulgation, the right to return them to the Chamber for reconsideration. Surely all the above described functions are of substance and not decorative. I have considered your two alternative proposals on the Executive and I find them completely unacceptable. In your first alternative proposal you suggest the abolition of the Council of Ministers and the adoption of a full presidential system as in the USA. In effect by proposing the abolition of the Council of Ministers in which the Greeks, under the 1960 Constitution were represented at 70% and the Turks at 30% and will now by virtue of what we have agreed so far be represented at 80% while the Turks at 20%, you aim at vesting the Executive power jointly in the President and the Vice-President. In other words you are proposing that the 82% of the Greek population shall have the same representation in the Executive as that of the 18% of the Turkish population. I noted that, although you propose a full presidential system as in the USA, you do not suggest that the Vice-President of the Republic of Cyprus will have similar powers, rights and duties as those of the Vice-President of the USA. Coming now to your second alternative proposal i.e. that the President will be Greek and the Prime Minister Turkish Cypriot elected by the Turkish Cypriots, which is based on the example of Lebanon, where the President is

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In Search of a Solution Christian and the Prime Minister Moslem, may I draw your attention to the following facts: (a) In Lebanon the proportion between Christians and Moslems is approximately 50% of each, while in Cyprus the proportion between Greek Cypriots and Turkish Cypriots is 82% and 18%. (b) In Lebanon the President is elected by the entire population of the country, Christians and Moslems. Nor is the Prime Minister elected on separate Moslem electoral rolls as suggested by you in the case of Cyprus. If every Turkish Cypriot voted for the same Turkish candidate, the maximum votes such candidate could obtain would be only 18% of the total electorate. If, on the other hand, there were three Turkish-Cypriot candidates, the 18% of the Turkish electoral votes would be split three ways and the successful candidate could be elected by receiving only 7% of the votes of the total electorate. Such successful candidate could become the Prime Minister of the state and expect to have the confidence of the country. The Local Government With regard to Local Government you propose that the powers, duties and jurisdiction of the local authorities should be embedded in great detail in the Constitution. If this were to be done the Constitution of the Republic of Cyprus would have achieved at least one record, that of, being the longest and most unwieldy constitutional document in the entire world. I agree that the basic provisions regarding Local Government should be embedded in the Constitution. Following, however, your suggestion with regard to the Electoral Law, I am of the opinion that a Local Government Law should he drafted and agreed upon prior to the signing of the general agreement and that for the purposes of its amendment it should require a two-third majority of the Members of the House, which shall include one third of the votes of the Turkish Members. My proposals on the Local Government are: (a) That the House of Representatives will legislate on matters of Local Government delegating power to Local Government Authorities to make regulations, rules and by-laws. (b) That the Local Government Authorities, in addition to the power to make rules, regulations, by-laws have administrative functions on matters falling within their jurisdiction. (c) That each Turkish village shall form a unit of Local Government. (d) That a number of Turkish villages may be grouped together to form several areas of Local Government each of which will be under a Local Government Council.

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Part I: Constitutional Issues You have asked me to confirm that I have stated to you my agreement to have, for the purposes of Local Government, areas of towns inhabited by Turkish Cypriots grouped together with nearby Turkish villages. Your letter of the 13th March, 1971, correctly states the view I expressed, i.e. that we could probably take municipal areas in which Turkish Cypriots live as Local Government areas in conjunction with nearby Turkish villages. I used the word ‘probably’ advisedly, because I felt that, in view of certain practical difficulties and unclarified relating issues, further consideration and discussion was needed. I am, of course, ready to examine with you in more detail the thought which I expressed. I do not agree that there should be a central Local Government Authority either for the Greeks or for the Turks and, therefore, I do not accept your alternative proposals on this issue. The purpose of Local Government is to decentralize authority giving it to the areas concerned and not to take powers and functions from the Government and the Legislature and give them on centralized system to the communities. Your proposal regarding the creation of separate Greek and Turkish Central Local Government Authorities, apart from other ills, will not only make the administrative system completely unworkable and put into slow motion the development of the country but also will produce every-day friction. Furthermore, in order to be implemented, it requires unnecessary multiplication of public services, the maintenance of which will be so costly as to strain the financial resources of the country to the breaking point. I have also proposed that the District Officers would have the right to refuse to sign any regulation or decision of the Local Government Authorities, which, in their opinion, would be outside the powers and functions of the Local Government Authorities or ultra vires, subject to the right of appeal to the Supreme Court by the Local Government Authorities concerned on any such decision of the District Officer. In your letter you object to this proposal alleging that the powers proposed by me for the District Officers would not be compatible with the autonomous status of the Local Government Authorities. You admit, however, that any person or authority of the Republic would have the right to complain that certain actions of the Local Government Authorities are ultra vires. Since you admit that the authorities of the Republic would have the right to challenge actions, which in their opinion are ultra vires, I do not see a more appropriate official than the District Officer to take such action. You appreciate that it is not possible to leave each organ of the State or Government Department to file, at its own discretion, recourses on such matters. Taking into consideration the proposals contained in your letter of the 27th of April, 1971, and my replies in this letter, it becomes clear that on the issue of the Legislative there are no longer any differences. On the issues of the Judiciary and the Police, in the light of what I have now further proposed, it should be possible to reach an early agreement.

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In Search of a Solution I am of the opinion that we should continue in a more vigorous way our effort to reach an agreement on all constitutional issues. Vigour alone, however, will not suffice. What is needed is to create conditions of every-day contact and co-operation between Greek and Turkish Cypriots, which will bring about greater normality and permit us to continue our talks in a better climate. I believe that much can be achieved by reaching a preliminary agreement on the Legislative, the Judiciary and the Police, or any of them, and by putting it into practice, without prejudice regarding the position of either side on the remaining unsolved issues. In the meantime a determined and all-out effort should be made to rehabilitate all refugees, to permit freedom of movement for all, preparing thus the ground for the early return of Turkish civil servants and for military deconfrontation. If my above suggestions are accepted by your side, I feel confident that, in the new climate of co-operation which would be created and in the light of the practical experience to be gained, it will be possible for us, without the strain of tension, to reach an agreement. Yours sincerely, Glafcos Clerides President of the House of Representatives Dear Glafcos, Dear Rauf: The August 1971 Letters and the Aftermath While the missed opening of April–June 1971 was gone, the bicommunal talks continued, and there remained a chance for an agreement. The two sides, still under the negotiating guidance of Rauf Denktash and Glafcos Clerides, very nearly reached an agreement the following year, and attempts were continuously pursued right up to the time of the 1974 Greek-led coup. Here are another round of letters, setting out the differences and possible solutions, followed by Clerides’s response. ____________________ 9 August 1971 Dear Glafcos, My side has studied your letter of 27 June 1971 with the care and attention which it deserves. The spirit of reconciliation in which you end your letter is fully shared by my side, which, so far, has done its best in order to pave the way for a just and permanent solution. It was in this spirit that I have agreed to almost all your suggested amendments of those parts of the Constitution on which your side had taken a definite stand as early as 1962, but unfortunately on those points on which my side feels an urgent and real need for amendment we have had no reciprocity so far.

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Part I: Constitutional Issues 1. At pages 6 to 11 of your letter you indicate how near we have come for the Police, the Judiciary, the Legislative and the Executive. In a sense this is true, but this near-compromise has been reached because all along the Turkish side has agreed to make important concessions on its existing rights. For example as early as November 1962 when you invited us to agree to amend Article 369 of the Constitution (now known as the 13point plan of Archbishop Makarios) you had insisted on: (a) the removal of the veto rights of the President and the Vice-President on Foreign Affairs, Internal Security and Defence. These points were taken up by you in our talks and I agreed to forego these rights without any difficulty; (b) The election of the Greek President and the Turkish Vice-President of the House of Representatives by the House as a whole and not, as at present, the President by Greek Members and the Vice-President by the Turkish Members. This point was also taken up by you at our talks to which I agreed in order to facilitate an agreement. On this point you raised a new issue, namely, that there should be two vice-presidents instead of one, and that one of the vice-presidents should be Greek. Although this was quite a new point and the idea behind it seemed to us to be to hinder the Turkish vice-president from acting for the Greek president during the latter’s temporary absence, I nevertheless agreed to having two vice-presidents as suggested by you, believing that the question of deputizing will be adequately and justly tackled when we come to draft the Constitutional provisions relating to this issue. In fact your whole argument (in your 13 point plan) in having the President and Vice-President of the House elected by the House as a whole was to enable the Turkish VicePresident to act for the President in the latter’s absence. The necessity to have two vice-presidents arose, you said, having regard to the volume of work and to nothing else! Yet, there is no hint whatsoever in your new deal that the Turkish Vice-President shall have priority on this issue in view of the concession which we have agreed to make on your above-referred argument! (c) the abolition of the Constitutional provisions regarding separate majorities for enactment of certain laws by the House of Representatives. This point was also taken up by you during our talks and – subject to minor reservations – I agreed to have these provisions abolished in order not to hinder a quick settlement. (d) the unification (as you named it) of the administration of Justice by bringing the functions of the Supreme Constitutional Court under the Supreme Court of Judicature. This point was also taken up by you at our talks and in spite of the protection given to my community by the existence of a separate Constitutional Court (on which we had equal

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(e)

(f)

(g)

(h)

(i)

(j)

representation under a non-Cypriot president), I agreed to your request in the belief and hope that justice would, at that level, be kept above politics at all times. again, in order to facilitate a speedy agreement I agreed to reduce our 50% participation in the Constitutional Court and 30% participation in the Supreme Court of Judicature to 3 Turkish Justices on a Bench of 9 Judges. I also agreed to forego the necessity of having independent non-Cypriot Presidents for these Courts although Greek Cypriot judges did not hesitate to pass judgement on the whole Community by declaring in open Court that they would take judicial notice of the existence of a Turkish rebellion in Cyprus – a view which could not be supported by evidence or by what has happened in Cyprus since December 1963. Again, in order to facilitate a speedy agreement I proposed to amend Article 159 of the Constitution (which your side wanted to be abolished completely) by making it optional on the litigants to take advantage of the protection afforded by this Article. This, on our part, was a major concession on an extremely vital point and I reiterate my offer to make this particular amendment to this Article in the way I have suggested. the unification of the Police Force with the Gendermarie. This point was also taken up by you at our talks and once again, hoping that a speedy agreement could be reached, I agreed to your proposals. the participation of the Turkish Community in the Public Service and the Forces of the Republic as well as in the Public Service Commission to be in proportion to the ratio of population viz. 20%. This, again, was taken up by you at our talks and once again I agreed without any fuss that this should be so. I also agreed to the reduction of Turkish Members to 20% in the Public Service Commission and to the abolition of the provision requiring separate majority vote of both Communities at the deliberations of the Commission.

2. My approach to the problem, as you know, was quite simple: your side had set out to get certain Constitutional amendments; my side could agree to a great number of them provided that the intercommunal balance set out under the present agreements was not upset! For us, the retention of this balance which gave the Cyprus State its Cypriot character by providing for the co-operation in partnership of the two ethnic communities is, and has always been, very important, because without this balance the Cyprus State becomes, not a Cypriot State as it should be, but a Greek Cypriot State with the door wide open to Enosis (union of Cyprus with Greece). It is in this spirit and having particular regard to this aspect of the problem that my side has examined all your proposals and has authorised me to make concessions or to insist on the retention of a certain right. The arguments advanced in the Greek

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Part I: Constitutional Issues Cypriot leadership that the Turkish side is trying to lay the foundations of separation which will eventually lead to partition are utterly unwarranted by what I have tried to achieve at our talks; nor can any man of conscience accuse us of leading a partitionist policy except in reply to [the] Greek Cypriot leadership’s continued call and agitation for Enosis; because we believe that if the Enosis policy is continued the way it has been since December 1963 the complete separation of the two communities will become inevitable. My side’s sincere belief is that if the Enosis cause (which has been the only issue which has divided us and which continues to poison our relations) is properly and adequately shelved a great deal of our troubles will be solved and the finding of a just and permanent solution will be all the easier. 3. Having thus underlined the important concessions made by my side, the spirit in which they were made and the difficulties, fears and doubts which still continue to overshadow our motivation it suffices to say that in making these concessions in order to satisfy your side’s demands I always took into account the necessity which existed as a real and psychological factor of satisfying the needs of my community – need of security of life and property, need of satisfaction that administrative and economic discrimination would not be their ultimate lot! I feel sure that after all that has happened in Cyprus over the last eight years and the way my community has suffered no one can argue that these needs, real and psychological, are over-emphasized. Even so, I have taken the minimum requirements and asked for local autonomy in return for all the concessions which my side was prepared to make. On the functions of the autonomous local authorities we have agreed on almost all points with the exception of a few. This, by itself, should suffice to indicate that what the Turkish side is after on the question of local autonomy is not the creation of a state within the State as the Greek press seems to have been informed by your side. 4. In short, we are asking for that minimum degree of protection which we envisage in local area system. In addition we feel that if we do not establish such a system of inter-communal balance the outcome of our concessions will be the establishment of a Greek Cypriot Republic and not a Cypriot Republic of inter-communal partnership, which was the sole objective of our talks. 5. Your side however, seems to have tackled the offers and counter offers made by either side as if these constituted the sole points of conflict between the two communities whereas the main cause of conflict continues to be as explained above in the philosophy of approach to the problem. But before I go into that matter I should like to request clarification of your stand on para 6 of my letter of 27 April, 1971 viz. as to whether you agree with me that if and when agreement is reached on matters tackled as a package deal ‘the remaining parts of our Constitution

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In Search of a Solution will stand in its present form subject to such minor adjustments necessitated in the light of agreement on the package deal’. This point is very important for us; it forms part of the papers exchanged between us and we need your answer on it in order to be able to assess the merits and demerits of your last letter. 6. Your answer to that part of my letter which indicated doubts as to ultimate Greek-Cypriot policy on Cyprus is a statement of fact merely on your mandate viz. that your instructions ‘to seek a solution of the Constitutional aspects of the Cyprus problem in the context of an independent Cyprus have not been changed’, and does not categorically rule out the Enosis policy as a continuing and ultimate objective. You know our position on this problem. We cannot afford to negotiate a settlement in any way or form which does not effectively bar the way to Enosis (and double Enosis). This, I believe, was all along an understood sine quo non of our talks but the need to reaffirm it has become very important in view of the Yialousa speech of Archbishop Makarios and his reported statement to some National Front men that he will never sign any agreement which bars the way to Enosis and that all his efforts so far have been concentrated on achieving this objective and that he will never deviate from this policy! If this is your Leader’s stand, you’ll appreciate that our exercise is merely for talking’s sake. The 6 April 1971 statement by the Ministers, to which you refer in paragraph 6 of your letter, is of neutral value and does not in any way give us what we seek, namely, a categorical assurance that the Greek-Cypriot side will accept a permanent solution based on independence which independence will be effectively guaranteed – as hitherto – against overt acts (from within or without) directed at its disruption. I am sure that you’ll understand our anxiety and sensitivity over this issue: We cannot afford to go through the 1963– 67 experiences again. 7. I should like to add a few more words in reply to the introductory parts of your letter. In para 8 you set out in three sub-paragraphs what you suggest to be our ‘understood terms of reference’. The word ‘unitary’ was never used by either of us. On the contrary we agreed that it was no use giving a name to the objective sought without first finding out the essentials leading to it. When the word ‘unitary’ came to be used we discovered that different conceptions existed about its actual meaning. The Turkish side continues to understand from this word a form of government as set out by Zurich Agreements. Later, in one of our usual talks with the press, you agreed that the Zurich setup was a unitary state. If you confirm this view in writing I believe that a great deal of diversity will be avoided and my proposals to you will be better appreciated when tested in the light of the Zurich setup which we call ‘partnership’ or ‘functional federated system’ is of paramount importance for us. If Cyprus is to have a Cypriot Government and not purely a Greek Cypriot

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Part I: Constitutional Issues Administration we cannot see any way of achieving this other than by the retention of the Zurich setup. What we understand of this setup is this: Communal matters must be within the competence of the Communities while the two Communities must participate in governmental matters under agreed terms and conditions. 8. Your allegation that the Greek side does not wish to retain its own Communal Chamber has been thoroughly examined by my side. During the course of our talks I had explained to you that we would not object [to] your renaming the Central Greek Cypriot Authority which would deal with Greek Communal matters plus the autonomous Greek local affairs but I never left you under the impression that the Turkish side could accept any setup in which two central authorities (one Turkish and one Greek) did not exist. The importance of retaining this equality of status on which the whole framework of the new Republic is to be placed is too obvious a matter to need further amplification. Indeed, the way your side began to treat the ‘Greek Communal affairs’ as Governmental affairs has underlined the absolute necessity of re-establishing the inter-communal equilibrium which exists under the 1960 Constitution. 9. You will see from the foregoing that what we have agreed to do is to take the existing foundations and the framework of the 1960 Agreements and try to make internal changes therein in order to meet your long-standing complaints about the excessiveness of the Turkish rights; thus I indicated willingness (i) to forego the veto rights; (ii) to add a new vice-president (Greek) to the House, (iii) to have the president and vice-presidents of the House elected by the whole House, (iv) to forego the necessity of separate majority votes in certain legislation, (v) to unite the Supreme Constitutional Court with the High Court, (vi) to unite the gendermarie with the police, (vii) to reduce Turkish participation in the Cabinet and the civil service to 20%, etc. In return for all these changes which your side sought to achieve we introduced the idea of creating autonomous local bodies for Greeks and Turks separately. Although in principle your side seemed to agree to such a setup, when it came to consider its shape or form we discovered that what your side was willing to grant had nothing to do with autonomy. In our proposals the setup was a very simple matter. It merely required the addition of the local authority affairs and functions to the functions of the autonomous Communal Chambers. In this context the problem could have been speedily solved without raising a hue and cry about attempts to create a state within the state and so on. … But because your approach to the whole problem was quite different you put my whole suggestion on a foundation other than that created in the 1960 Agreements and thus our proposals were presented to the world as grotesque. I must, therefore, make it abundantly clear that all my statements to the effect that we were prepared to change

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In Search of a Solution the internal structure as set out in paragraph I above were made subject to the condition that two central authorities would be established for Greek and Turkish local authorities. In order to avoid multiplicity of such authorities I had suggested adding the functions to the Communal Chambers, if necessary by changing their names in order not to give the impression to your people that you had been forced by us to re-establish your Greek Communal Chamber which you had unilaterally and unconstitutionally ‘abolished’. The establishment of two central authorities, therefore, is a fundamental issue for us, on which I am not authorized to bargain. On this issue, however, my alternative suggestions outlined in my letter of 27 April 1971 are still open for discussion. As stated above the way in which your side has dealt with Greek communal affairs in the last few months has made it necessary for us to consider the reestablishment of the Greek Communal Chamber as an acute necessity. You will thus see that the question of the Greek Communal Chamber was not reopened by us as a new and additional demand but had to be tackled in the light of what your side has done on the question of scholarships, priests’ stipends etc., as outlined in detail in my previous letter. Subject to finding a satisfactory answer to the problems created by your side by amalgamating Greek communal affairs with governmental affairs and subject to solving the problem of central authorities for the local bodies we would not insist on your re-establishing the Greek Communal Chamber. But the creation of a post of Minister of Education for Cyprus cannot be accepted by my side in view of the fact that education is a communal matter and not a governmental matter. As suggested in my previous letter the example followed in Belgium where they have two Ministers of Education should be borne in mind as a cure for the particular ill. This will require, naturally, a new approach to the problem. At this juncture let me point out that your analysis of the effects of your ‘abolishing’ the Greek Communal Chamber cannot be accepted by my side. Greek communal matters have been transferred to the ‘Government’ and our political, juridical and financial rights have been affected adversely. Mere financial arrangements cannot take the sting away. Communal matters are matters solely for the two communities and these should not be mixed up in governmental affairs. If the latter is what you want to – as it appears to be from what you have recently done on this matter – I believe that the whole issues would be tackled on the basis of this philosophy and I am prepared to discuss these anew subject to the understanding that communal equality of status shall be maintained at all levels. You seem to place refusal of re-establishing the Greek Communal Chamber on financial reasons (ref: page 5 of your letter paras 1–2). I will have to dwell on this point very shortly. I do not want to burden the country with a third Chamber. Indeed, if any

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Part I: Constitutional Issues suggestion that Local Autonomy functions be added to the functions of the Communal Chambers is accepted a thorny problem will have been settled without any additional cost to the public. I agree that ‘The objects of good government are not compatible with burdening the citizens with added taxes’ but I do not agree that the institution which existed under the 1960 Constitution (viz the two Communal Chambers ) or the ones I propose now viz the central bodies for the two local authorities, are unnecessary or unwanted institutions which will so burden the taxpayer. The wisdom and necessity of setting up the Communal Chambers have been proved; your side’s decision to ‘abolish’ the Greek Communal Chamber was a political one in line with your policy of creating a Greek Cypriot Republic by destroying the Cypriot (Greco-Turkish) partnership image of the existing Republic. Finance and additional burden to the tax-payer never arose as a reason for such abolishment. I believe that you are under no misapprehension about the way in which I conducted the negotiations. From the beginning I told you that I could be willing to forego the veto-rights and accept a great number of your other suggestions for amending the Constitution subject to the establishment of separate autonomous local authorities for Greeks and Turks. The whole essence of my proposal lay in the creation of Central authorities for these bodies in view of the smallness of the units of which they would be made. In other words ‘The package deal’ offer, as far as my side is concerned is closely tied up with the idea of establishing these central authorities. When you queried the wisdom of having these central authorities in addition to the Communal Chambers I pointed out that the functions could all be brought under one central authority for each community and that what name we gave to them was immaterial. Arguments against such a setup may be found and some of these are to be real and substantial but none of these suffice to convince us that we do not need the protection which we see in this set up. At the moment psychological and real reasons, deep-seated fears and anxieties and the bitter experiences of the past continue to motivate us. 10. On the question of sound and vision broadcasting I am sure that you will recollect the numerous times we have discussed this dire need of the Turkish Community in view of the manner in which this Cypriot institution was used – and is being used – as a private Hellenic Enterprise with a great deal of ill effects on the intercommunal relations. The Turkish sound broadcasting system is now in its eighth year and is being maintained with great success. I do not think that I can convince my community to forego this right at this stage and in a country where there are two languages, two cultures and two ethnic communities it is only just and fair that each Community should be allowed to have free use of the means of mass media of communication for cultural, social and

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In Search of a Solution educational purposes. You will recollect that I had suggested to you the possibility of agreeing to have a system of co-operation on the news and political commentaries, in order to eliminate the likelihood of using these media for poisoning inter-communal relations! The necessity of a Turkish TV is being more and more felt in view of the increasing use of the present TV network by your side as a means of Greek cultural advertisement and Hellenic indoctrination in complete disregard of the Turkish Community’s feelings. For the financial aspect of the problem a remedy can be found but for what the sound and vision broadcasting in Greek Cypriot hands has done to us there is only one remedy and that is to have our own systems fully established. You will see that this aspect of our request has been fully incorporated in the papers we initialled at sub para (xxiv) of the paper entitled ‘Turkish proposals for Functions of Central Authorities’ page 19. 11. On the separate issues like the police, the judiciary, the legislative, the executive and the autonomous local authorities which you have tackled in your letter, I have the following observations to make: The Police The issue which seems to divide us on this subject seems to be our proposal for the establishment of peace-keeping authorities for local areas in return for the concessions which we have to make (i) reducing Turkish participation in the police force to 20%, (ii) agreeing to combine the gendermarie with the police, which were the fundamental concessions which you wanted us to make originally. If, therefore, you are not prepared to agree to the establishment of peacekeeping authorities for local areas the basis on which we had agreed to make the concessions outlined in (i) and (ii) above is completely eroded. On this issue I do not intend to repeat the reasons which underlie our proposals for establishing local authority police or peace-keeping force. I had gone into that fully in my previous letter. Another point which now arises out of your letter is this: Whereas it was agreed that where the Head of the Police is Greek, the Deputy Head should be Turkish, as hitherto, you now present this as a concession by seemingly agreeing to a point which was not raised as an issue at all on the condition that ‘the Turkish side agrees to regulate the numerical strength of the police by law.’ Our position is that the numerical strength of the Force should continue to be determined, as hitherto, by the President and Vice-President. But again when it came to initial the papers I made a further concession and proposed that the numerical strength of the Force should be determined by the Constitution. I am willing to agree to the retention of the present setup or to the proposal made by me in the initialled papers. I believe that the

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Part I: Constitutional Issues present setup is far more practical and can work without a hitch. The position of the Head and Deputy Head of the Force should be as it is under the present system viz: where the Head is a Greek, the Deputy should be Turkish. As to your suggestion that where the majority of the Turkish Cypriots in an area approaches 100% you will agree to have the Force consist of Turkish Cypriots. The difficulty in the past has been in the definition of areas. As you know the tendency in the past had been to decide arbitrarily as to whether a given Turkish village or group of Turkish villages were in a Turkish area or not and thus the protection which Article 132 envisaged for the Turkish Cypriots was rendered almost null and void by one-sided administrative decision that there existed no area in which we were in the majority! Probably, the area concept which has now entered into our negotiations as part of the autonomous local authorities will solve this problem when Turkish and Greek areas are legally defined for the latter purpose. The Judiciary On the judiciary I see that your position on Article 159 has not changed. You still insist on rewriting this Article in such a way that an existing Constitutional right will only be used if the litigants opt for it. We feel that this course is more embarrassing for the litigants, the judges and the counsel involved because it will call for the rejection of a judge who will seem to have ordinary jurisdiction, whereas under the procedure which we envisage all that a litigant will have to do is to declare that he will not insist on his Constitutional right to be tried by a judge of his community. I hope you will agree to our proposal on this issue. As to the appointment of honorary justices to try cases arising from laws, regulations etc. of local authorities I suggest that the autonomous character of these authorities should be safeguarded either by having such appointments made by the President for the Greek authorities and the Vice-President for the Turkish authorities or jointly by them both, or more properly by the Central authorities of each local area (Greek and Turkish). I would have no objection to defining the qualifications, jurisdiction, powers and functions of the honorary justices by a law if the power to appoint them is regulated as envisaged in my previous paragraph. The qualification of these honorary justices, I believe, should be that they should be educated men of upright character with, preferably, some legal background. A restriction beyond this will curtail the chances of finding suitable candidates at all times. These points can be looked into at a later stage by a legal subcommittee. The Legislative On the Question of ‘The rights entrenched by the Constitution’ the autonomous local authorities (when agreed) will be covered.

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In Search of a Solution The Executive My side cannot agree to the elimination of the existing rights of the VicePresident apart from those on which we have specifically agreed. The joint exercise of the functions which the president and vice-president have under the 1960 Constitution had created no difficulty whatsoever during 1960–63 period. On the contrary the existence of such a joint responsibility will help the population realize that full co-operation exists at the uppermost level and the Head and Deputy Head of State will find the opportunity of meeting together, knowing each other and discussing current inter-communal matters in a better spirit of give and take. If the Head of State is allowed to reign as the Supreme Head on all occasions, the fact that he has been elected only by the Greek electors, will give his actions purely a Greek character, whereas, the Head and Deputy Head acting together will be able to show to the population that their actions are ‘Cypriot’ rather than Greek or Turkish. It may be true that in other states the powers and duties of the vicepresident are different, but we must not lose sight of the fact that in Cyprus the Republic is a compromise solution between Greek Cypriot demand that the island should unite with Greece and the Turkish Cypriot demand that it should not be so united. We have not yet reached the stage where the independence is accepted as an end in itself. Hence our inability to agree to a solution whereby the president, elected solely by the Greeks, should have the normal powers and duties of a president elected by a nation which has won its independence and accepts it as an end in itself. If we avoid seeing the peculiarities of Cyprus and the reasons (organic, psychological, political and factual) which have made the Cyprus problem what it is today, it will not be possible for us to find a reasonable solution merely by examining the Constitutional set up of other countries. The ills peculiar to Cyprus need special remedies and I feel that what we should try to do is to find the best solution applicable and not the best solution which has been applied elsewhere. I will not comment on your mathematical analysis of the rights and votes of 82% Greek and 18% Turks and what would happen if there were more than one Turkish candidate for the vice-president etc. This way of looking at our problem is unrealistic. What matters is that two national communities exist in Cyprus and that these two communities (irrespective of their number) own the independence of Cyprus. Our attempt is for the purpose of finding an acceptable and agreed formula whereby the numerically many will enjoy its full powers and functions while the numerically less will not feel trodden upon, excluded and unwanted in an independent country which it has brought about on the basis of equality with its Greek Cypriot partners. The solution aimed at must be relatively the best solution because it will have to be a compromise between two opposing sides on the fundamental issues. Our option under these circumstances is either to work for a compromise solution which will help us live in co-operation and understanding in an independent

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Part I: Constitutional Issues Cyprus or to bow to Greek Cypriot demands for complete surrender of our rights and status. We have therefore, to be assured that adequate remedies exist for the protection of these rights and this status and that we are not at the mercy of the numerically many – if the numerically many decides to be unjust and unfair. It is with these thoughts and the bitter experiences of the past that we are forced to cling to certain rights and powers which under normal circumstances one might think to be unnecessary. No one can argue that the Turkish fears, doubts and suspicions vis-à-vis Greek Cypriot intentions in Cyprus are imaginary. These real and psychological factors do, unfortunately, colour our vision and force us to seek protective measures. Continuous goodwill and magnanimity on your part over a long period of time may dispel these fears and doubts and the future generations may well decide that such protective measures are not necessary for the welfare of the Turkish community. The Local Government Your objection to my proposal that the powers, duties and jurisdiction of the local authorities should be embedded in great detail in the Constitution seems to rest on appearance. You argue that if we did this our Constitution would be very long and unwieldy. That may be so, but this is necessary in view of your side’s treatment of other Turkish rights under the 1960 Constitution. You propose that the basic provisions regarding autonomous local authorities should be embedded in the Constitution and the rest be left to the legislation. But it is exactly because the legislators failed in their duties in the past and refused to pass the legislation necessitated by certain basic provisions in the Constitution (regarding the separate Municipalities and the Army) that an artificial Constitutional crisis was created and later used as an excuse for attacking us. We cannot afford to run the same risk again. Constitutions answer the need of a country. We feel in need of a long and detailed Constitution on this topic for reasons explained above. In Switzerland certain import and export matters are provided for in the Constitution. In other countries matters which would normally be dealt with by ordinary legislation are incorporated in their Constitution. Furthermore, my proposal that the powers, duties and functions of the local authorities be inserted in the Constitution in great detail was a compromise on my original proposal that the legislative power on local authority affairs should be given to the central authorities by the Constitution. You objected to this formula and proposed that the local authorities should only have the right to make by-laws or regulations by virtue of legislation to be passed by the House. In view of the past behaviour of the House, as explained above, I would not agree to this. So, I suggested that the authorities draw their right to make subsidiary legislation directly from the ‘laws’ to be incorporated in the Constitution. On this point I do not feel justified in advising my side to accept your proposals.

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In Search of a Solution Local authority matters, like other Turkish matters common to both communities should be entrenched rights in the Constitution as originally proposed by me in the papers which we had initialled. On the question of Turkish municipalities this is to state our positive stand that such municipal areas by themselves or grouped together with other Turkish villages in the vicinity should be treated as local authority areas. The idea that tens of thousands of Turks living in municipal areas should be deprived of the right to look after their local affairs while 100 Turks living in a tiny village will enjoy such right will create an unacceptable anomaly for us and I hope you’ll have no difficulty in finalizing this issue vis-à-vis your side. On the issue of Central Authority for local governments we see that you have not moved on your original stand. As I explained earlier in this letter the whole philosophy behind my proposals for a Central Authority for the autonomous local authorities was the thought that, in agreeing to make the substantial concessions to you on those parts of the Constitution which your side thought needed amendment I would get in return local autonomy as an added function to the Communal Chamber functions. Your rejection of the adding up of this function to the functions of the Communal Chambers sweeps away all the foundation on which I had agreed to make the concessions which I indicated I could make if local autonomy was agreed upon. You seem to base your objection to these central authorities on the following reasons: (a) The centralization which we foresee in our proposals is not compatible with the local government idea. I believe that this objection by itself indicates where the difference between us lies. You have treated the idea of local autonomy all along as equivalent to limited local government under complete governmental supervision, whereas I have treated it as an added autonomous function to the functions of the Communal Chambers. The local people would thus enjoy, within the limits of their legislation, executive powers and duties locally while for the purposes of supervision, legislation, control and finance they would act, through their elected representatives at Communal Chamber or the Central Authority level. What the functions of these local bodies, locally or centrally, are to be, have, more or less, been agreed upon. It is a gross distortion of fact to argue – as the Greek Cypriot press has been made to argue – that the exercise of such functions by the local bodies (locally or centrally) would be tantamount to setting up a state within the state. (b) Your second objection to my proposals once again rests on considerations of cost, duplicity and unworkability. These objections become valid once one side or the other intends to hinder the full application of the Constitution in a spirit of goodwill. A workable, wellbalanced Constitution like the one we have has been attacked and sabotaged on alleged reasons of unworkability and so on even without an attempt to implement it. To the Greek Cypriot side the only just and 173

Part I: Constitutional Issues workable Constitution seems to be one which will create a Greek state and not a Cypriot one; the only setup which will satisfy your side seems to be one in which the Turkish Cypriots will be left at Greek-Cypriot mercy as a defenceless minority. You seem to think that the creation of central bodies for the local authorities will create everyday friction. This is correct if your side will continue to look upon any setup which gives the Turkish Cypriots any rights or status as a setup which has to be destroyed in the name of ‘the right of the majority’ in complete disregard of basic elements which have brought about the independent state of Cyprus. We do not share your anxiety that if our proposals are accepted there will be a multiplication of services ‘the maintenance of which will strain the financial resources of the country to the breaking point’. This very objection was raised in order to avoid the setting up of a Cyprus Army of 2000 men, as provided by the 1960 Constitution, but ‘financial reasons’ had not prevented your side from setting up secret armies in preparation for an attack on us and since then, the Greek Community has maintained a force of more than 15,000 without any adverse effect on the development of Greek sectors. We feel that these financial considerations and anxieties about ‘multiplicity of services’ are unduly exaggerated. How we see the problem is as follows: X amount has to be spent on local areas. Some of this sum will be collected from the local inhabitants in the form of rates; some of it will be paid from the public Treasury in the form of grants in agreed proportion from the moneys collected by the State as direct or indirect taxes. If the State had to cover all the services it would have to spend X sum of money in toto; because local rates will also be collected the State will spend much less. The population will not be over-taxed in any sense. Such arrangements exist in Switzerland and if we tackled the problem in goodwill a workable, just and fair solution may be found. Let us not forget that we have had a long experience of what life is like under the joint municipalities. The majority Greek representatives have always calculated to find out the percentage of Turkish Contribution to the municipal funds and have refused to spend any money on the development of Turkish parts of the towns. The result is obvious. It is against this GreekCypriot mentality of looking upon us as separate contributors who should benefit according to the contributions that we have to protect ourselves. The Cyprus revenue gets a proportionate sum of the rates and taxes from the Turks. We should seek a fair way of having the expenditure on services and development distributed according to this proposition. In a country where the ruling class never discriminated and never discriminates against a section of its population such consideration may be irrelevant and even harmful; but in Cyprus the foundations on which we have to build a joint enterprise are, unfortunately, such that considerations of self-protection for 174

In Search of a Solution the Turkish community are paramount. It is very unfortunate that this need which existed to a certain degree when the Zurich regime was created has only been greatly accentuated by what has happened since 1963. We feel that in our new attempt to set up a new enterprise jointly we must seek these protective measures and considerations like ‘multiplicity of services and cost’ can only have secondary importance for us. Suffice it to say that in the setup which we envisage there is no intention of burdening the Greek taxpayer for Turkish services or institutions. The fact that we advocate the addition of local authority functions to the function of the Communal Chambers should be sufficient to assure your side that this is so. I do not think your side can argue that Greek taxpayers have been made to pay for any of the services which the Turkish Communal Chamber ran as a communal affair. In reply to your proposition that the District Officer should sign or refuse to sign the by-laws, regulations made by the local authorities I should like to point out that this will be completely out of context and not compatible with the idea of ‘autonomy’ and that the powers which you envisage for the District Officer are already vested in the Vice-President vis-à-vis the laws and regulations made by the Turkish Communal Chamber. If the local authorities are made part and parcel of the Communal Chambers this problem will solve itself. In the context in which we see the local administration the District Officer has no locus standi apart from governmental services and functions which will continue as hitherto. I can but agree with you that vigour alone will not suffice to make us reach an agreement and that what is needed is to create conditions of everyday contact and co-operation between Greek and Turkish Cypriots, which will bring about greater normality and permit us to continue our talks in a better climate. As you know with this view in mind we discussed in detail and discarded as impracticable the idea of piecemeal implementation of those points or subjects on which agreement might be reached. My side has now reconsidered your offer that we could and should do so in order to bring about better normality. I do not know the reasons which have prompted you to change your mind on this but after careful consideration my side feels that the objections which we had jointly agreed existed to piecemeal implementation of agreed subjects continue to exist today. There are, however, grounds on which progress can be made without affecting the political considerations of either side and I am ready to discuss those with you at your convenience. Yours sincerely, Rauf R. Denktash, President Turkish Communal Chamber

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Part I: Constitutional Issues Clerides replies to Denktash’s August letter: Nicosia, 24 August 1971 Dear Rauf, Your letter of the 9th of August, 1971, has been considered with the greatest care and in a real effort to detect in it any constructive elements. It has been, however, regretfully realized that the position of your side is totally intransigent as proved by its uncompromising positions to the problem both in general and on particular issues as well as by your statement that you are not authorized to negotiate on the position of your side regarding the establishment of two separate central Local Government Authorities. To justify this intransigence you state, inter alia, that your side have agreed to almost all the suggested amendments of those parts of the Constitution on which my side had taken a stand as early as 1962. It is clear that your side is labouring under a false impression on this issue and, therefore, it may be useful and constructive to examine the alleged acceptance by your side of almost all the points of amendment proposed by my side which, on the 30th of November 1963, were embodied into a document bearing the title ‘President Makarios’s Proposals to Amend the Cyprus Constitution’ generally known as the ‘13 Points’. Before, however, examining the contention that the ‘13 Points’ of suggested amendments have been accepted almost in toto by your side, let me remind you of the following: (a) From the commencement of the talks, some three years ago, to the present day we have never considered or discussed the constitutional proposal of 1963 as such. (b) Both sides have, during the second phase of our talks, submitted written proposals on all constitutional issues i.e. Executive, Legislative, Judiciary, Public Service, Police, Local Government, which formed the basis of our discussions. (c) At the end of the third phase of our talks, after discussing exhaustively the aforementioned written proposals, we drew up a document showing points of agreement and disagreement. (d) On the basis of the points of agreement and disagreement established, both sides submitted written ‘package deal’ proposals. It is evident from what is stated above that neither side considered the constitutional proposal of 1963 as the basis of discussion or negotiation during our talks. Regarding, however, the alleged acceptance by your side of most of the proposed amendments of 1963, let me present the correct facts by stating what were some of the most important amendments asked for and what is the position of your side with regard to them. It was proposed in 1963 that the separate Municipalities for the Greeks and

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In Search of a Solution the Turks in the five main towns, which under the 1960 constitution were to be established for an experimental period of five years, should be unified. Briefly stated the reasons which made necessary the unification of the Municipalities were the fact that geographical separation was not feasible, that the separation of the Municipalities would be financially detrimental to the townsmen and that the resulting duplication of Municipal Services and the cost of their proper functioning impossible. It was suggested that the Municipal Councils in each of the five main towns should consist of Greek and Turkish Councillors in proportion to the number of the Greek and Turkish inhabitants of such town by whom they would be elected respectively and that there should be earmarked in the Budget of each such town, after deducting any expenditure for common services, a sum proportionate to the ratio of the Turkish population of such town which should be disposed of for municipal purposes recommended by the Turkish Councillors. Your side not only refuses to accept the unification of the Municipalities, but insists on extending this separation to the entire island, overlooking the fact that the provisions of the 1960 Constitution were limited to five towns only and, in the first instance, to a period of five years, that geographical separation of Turkish areas is not feasible, that the Turkish Cypriots would be unable to cover the cost of their separate administration and that the resulting multiplication of separate services under two central Local Government Authorities would cause, inter alia, a heavy drain on the financial resources of the country with serious adverse effects on its future development. It was proposed in 1963 to abolish the separate majorities for the enactment of certain laws by the House of Representatives. The 1960 Constitution provided that any modification of the Electoral Law, the adoption of any law relating to Municipalities and any law imposing duties and taxes required a separate simple majority of the representatives elected by the Greek and Turkish communities. In other words it gave a legislative veto to the Turkish Members of the House on the above stated matters. With regard to the Electoral Law and any amendment thereof you indicated that you were prepared to accept that such law, in order to be enacted or amended, would require an increased majority which should include onethird of the Turkish-Cypriot votes. In substance, therefore, the Turkish Legislative veto on the enactment or amendment of Electoral Laws continues in a different form, since at least five Turkish votes will be needed for the enactment or amendment of any such law. As to legislation relating to the Municipalities, not only has your side not accepted that such laws shall be enacted by simple majority, thus abolishing the separate majorities provided by the 1960 Constitution, but on the contrary it insists that such legislation must be enacted separately by the respective Central Greek and Turkish Local Government Authorities

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Part I: Constitutional Issues proposed by you, thus rendering the House of Representatives completely incompetent to legislate on such matters. Furthermore, your side, by insisting that Turkish and Greek Local Government must be left to separate central Local Government Authorities, deriving their powers and functions directly from the Constitution, has sought to transform the right of separate majorities, which with regard to Local Government was limited by the 1960 Constitution to legislation relating to five Municipalities only, to a much wider right of separate legislation in separate Chambers on Local Government in general, thus depriving the House of Representatives from legislating on matters in which it is competent to do so. From what is stated above it is evident that the allegation contained in your letter, that your side has accepted the abolition of separate majorities, does not render the correct position. On one issue, i.e. electoral legislation, it substituted one legislative veto with another and on another issue, legislation relating to Municipalities, instead of separate majorities it proposed separate legislation by separate authorities and in a much wider legislative field. It was proposed in 1963 that the division of the Security Forces into Police and Gendarmerie should be abolished, that the numerical strength of the Security Forces should be determined by law and that the proportion of composition of the Security Forces should correspond to the ratio of the Greek and Turkish inhabitants of the island. The amalgamation of the two Forces was proposed in order to cut down unnecessary expenditure resulting from the duplication of separate commands with separate Headquarters, both at Command and Divisional level, and to improve the efficiency of the Force. It is true that you have agreed to the amalgamation of the Police and the Gendarmerie, but you insist on the creation of two additional separate Police Forces, one purely Greek and one purely Turkish, outside the control of the Government and under the absolute control of the respective communities. It can hardly therefore be contended that your side has accepted the unification of the Security Forces as was proposed in 1963. On the contrary, your side demands that security should be the responsibility of three separate Police Forces, independent of each other, two of which will be under the separate control of the respective communities. Thus, the Turkish side by advocating the splitting of the Security Forces into three independent ones, with only one under the control of the Government, proposes a greater disunification of the Security Forces than that which was provided by the 1960 Constitution, i.e. two Security Forces, both under the control of the Government. With regard to the proposed amendment of 1963, that the numerical strength of the Security Forces should be determined by Law, not only has your side not accepted it but, as shown by your last letter, it insists that the

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In Search of a Solution numerical strength of the Security Forces must be fixed by the Constitution or must be left to the President and Vice-President, who will be fixing it, from time to time, by agreement. From what has been stated above it becomes clear that, with regard to the 1963 proposals for the Security Forces, your side has not accepted the principle that there should be only a unified Security Force under the Government, that its numerical strength should be determined by law and that it has only accepted the reduction of Turkish-Cypriot participation in the Government Security Force from 30% to 20%, at the expense of creating a separate Turkish Police Force under the control of the Turkish community. Another constitutional issue which was raised in the 1963 proposals was that of the unification of the administration of justice. It was stated then in the document containing the proposed amendments that: The Constitution separates the administration of justice on the basis of communal criteria by providing that in all cases, civil and criminal, a Greek must be tried by a Greek Judge, a Turk by a Turkish Judge and that cases, however trivial, involving both Greeks and Turks, must be tried by a mixed Court composed of Greek and Turkish Judges. This division is not only entirely unnecessary but, what is more important, is detrimental to the cause of justice. The very concept of justice defies separation. Your side has not accepted the unification of justice. It insists that the aforementioned provisions of the 1960 Constitution should continue subject to the right of a litigant to opt out of those provisions. It is a fact that you have accepted the amalgamation of the Supreme Constitutional Court and the High Court into one, but even for that you have asked for an increased Turkish-Cypriot participation in the amalgamated Court. Whereas there was one Turkish-Cypriot Judge in the Supreme Constitutional Court and one in the High Court, you have asked for three Turkish-Cypriot Judges in the amalgamated Court, which I have accepted. Furthermore, you are demanding the creation of Courts, under the separate Central Greek and Turkish Local Government Authorities proposed by you, to deal respectively with Greek and Turkish Local Government cases, and that the Judges of such Courts shall not be appointed by the Supreme Council of Judicature, but by the separate Local Government Authorities. Finally, it was proposed in 1963 that the Greek Communal Chamber should be abolished and that the Turkish Communal Chamber should be retained, should the Turkish community so desire. Although, you had accepted the abolition of the Greek Communal Chamber as clearly shown in the jointly signed document containing the

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Part I: Constitutional Issues points of our agreement and disagreement, you now insist on its resurrection or at least on its re-establishment in substance, but under a different name. You have indicated willingness to accept the reduction of Turkish-Cypriot participation in the Public Service and the Security Forces from 30% to 20%, i.e. a little above the proportion of the Turkish population, but this at the expense of having a separate administration of the Turks by the Turks with a separate Turkish Public Service and a separate Turkish Police Force, both of which you wish the State to subsidize. Similarly, you indicated your willingness to agree to the reduction of Turkish-Cypriot participation in the House of Representatives to 20%, should the Legislative field of the House be narrowed and the communities be given competence to legislate separately on a large variety of matters, which fall within the exclusive competence of the House of Representatives. Your side sees an ulterior motive in the suggestion that there should be a President of the House and two Vice-Presidents, elected by the House as a whole, one of whom should be a Turk. It attempts to interpret this proposal as a Greek device to deprive the Turkish Vice-President of the opportunity of presiding over the House in the event [that] the President is absent or unable to do so. Let me remind you that it was the Greek side which, as early as 1962, felt the necessity that the President of the House and its Vice-President should be elected by the House as a whole and that the Vice-President should deputise for the President of the House. When, during our talks, we exchanged written proposals, I proposed that there should be two Vice-Presidents of the House. My side felt that in view of the ratification by the House of Representatives of the European Convention on Human Rights, which, inter alia, forbids discrimination on account of race, religion, culture etc., the House of Representatives should not practise such discrimination by barring the office of the President of the House to a Turk and that of the Vice-President to a Greek. In order to meet Turkish anxieties that, in view of the Greek majority in the House, both offices would be filled by Greeks, it was proposed that a constitutional provision be inserted making it compulsory that one of the Vice-Presidents should be Turkish. I explained to you at the time that the two Vice-Presidents would preside over the Assembly and deputise for the Presidents, in the event of his absence or his inability to preside, in rotation. It follows from what is stated above that the fears of your side, i.e. that my side’s proposal was designed to deprive the Turkish Vice-President from presiding over the House or deputising for its President, is totally unfounded and uncalled for. Had my side entertained such thoughts, it would not have proposed any amendment of the 1960 Constitution on this point, which, as you know, barred the Vice-President from presiding over the Assembly. As stated in the preamble to the 1963 proposed constitutional amend-

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In Search of a Solution ments, they were based on the three years’ experience of the 1960 Constitution, and were designed, while safeguarding the interests of the Turkish community, to remove the difficulties created by certain constitutional provisions, which prevented the Greeks and Turks from co-operating in a spirit of understanding between them and were causing them to draw further apart instead of closer together, to the detriment of the wellbeing of the people of Cyprus as a whole. The brief analysis regarding your position on the ‘13 Points’ clearly shows that not only has your side not accepted them either in spirit or in substance or the majority of them, as contended in your letter, but on the contrary it has sought new arrangements and at a greater cost to the economy of the State, than those created by the 1960 Constitution. I do not think I need elaborate any further on the alleged concessions of your side. In your letter you dwell at some length on what you call ‘the Turkish philosophy’ regarding the solution of the Cyprus problem. If I understood rightly ‘the Turkish philosophy’ regarding the solution of the Cyprus problem, amounts to the following: (a) A permanent solution must be found of the Cyprus problem based on independence. (b) The Constitution of Cyprus must be based on the principle of the partnership of the two communities so that the State is a Cypriot one and not a Greek Cypriot. In this respect, in the opinion of your side, the relevant strength of the communities, numerical or otherwise is of no consequence. Further, as contended in your letter, communal matters must be left to the respective Communal Chamber because the abolition of the Greek Communal Chamber was made in line with my side’s policy of creating a Greek-Cypriot State. (c) In addition to the partnership principle the Constitution of Cyprus must provide for a functional federal administrative system. (d) The agreement to be reached and the independence of Cyprus must be guaranteed to the satisfaction of the Turkish side. Let me deal separately with each one of the principles contained in the ‘Turkish philosophy’. (a) The Permanency of the Solution In your previous letter you had asked me to state whether my side is aiming at a temporary or provisional solution of the Cyprus problem. I replied in my last letter that my instructions were to seek a lasting solution based on an independent sovereign unitary state. You find this answer inadequate because, as you allege, it merely states what my instructions were and not the intention of my side. I should have thought that by stating my instructions I was revealing

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Part I: Constitutional Issues clearly the intention of my side, showing, at the same time, that this intention had taken concrete form. Since, however, my reply did not satisfy you, I have no difficulty in stating that my side’s intention was and continues to be to find a lasting solution of the Cyprus problem based on an independent sovereign unitary state and that because of that intention I was instructed to act accordingly during our talks. May I remind you that the Secretary-General of the United Nations in his report to the Security Council dated 20th May, 1971, stated that ‘the problem of Cyprus must be solved by arriving, through peaceful means, at a lasting agreement based on the independence and sovereignty of a unitary state of Cyprus.’ You have taken exception in the answer given in my last letter regarding my understanding of our terms of reference. You contend that the word ‘unitary’ was never used by either of us. You allege that we agreed that it was no use giving a name to the objective sought without first finding out the essentials leading to it. I regret I cannot agree with you. From very early in our talks, once we began examining the substance of the problem, I explained to you that my side wanted a unitary state. You told me then that you did not object to the principle of a unitary state provided the safety of life and property and the existence of your community was secured. I have also told you that my side would not accept a federal, a cantonal system or any system that would create a state within the state. Not only have I explained to you the above, but I also made public statements to that effect, which were quoted by the Secretary-General in his reports to the Security Council. The Secretary-General in one of his reports in 1969, covering the period 3rd of June to 1st December 1969, states the following: (See Report S/9521, page 25). Mr Clerides has warned, however, that it would be erroneous to expect his side to abandon the principle of a unitary State and to accept a solution which would provide for a State which, while unitary in appearance, would in fact be run by three governments, i.e. a central Government with Turkish-Cypriot participation and two communal governments, each exercising jurisdiction in its respective sphere over the entire territory of the Republic. Peaceful coexistence between Greek and Turkish Cypriots was, in his view, not only possible and desirable but also imperative and could best be ensured within the framework of a unitary system of government where both communities could maintain their national character and at the same time co-operate with one or other. Mr Denktash, for his part, denied that the Turkish Cypriots wished to ‘create a state within a state’ of ‘three governments’ and stressed that a unitary State was not alien to

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In Search of a Solution their plans, which aimed at ensuring, within an independent State, their security and existence as a community with full authority to run affairs within the exclusive competence of the community. The above report of the Secretary-General to the Security Council made as early as 1969 clearly shows the correct position. You have asked me to confirm whether in my view the ‘Zurich Agreement setup’ was that of a unitary state. My answer is that the Zurich Agreement contained many divisive elements to which we have taken exception as early as 1962, for reasons which I have briefly explained in this letter. I am, however, convinced that the arrangements you now propose are even more divisive. (b) Partnership Principle According to the philosophy of your side the Constitution of Cyprus must be based on the partnership of the two communities so that Cyprus is made into a Cypriot State and not a Greek-Cypriot one. You also postulate the theory that the numerical strength of the communities is not a fact to be taken into consideration, attempting thus to equalize the 18% of the Turkish population to the 82% of the Greek. Though it goes without saying that every citizen of the Republic, be he a Greek or a Turk, shall have the same political and other rights, nevertheless, since your side insists that the Greeks and Turks must exercise their political rights separately as communities, I cannot accept that the Turkish community, which is only 18% of the population of Cyprus, shall have collectively the same rights as the Greek community, which constitutes 82% of the population. I am, however, prepared to accept proportional representation of the Turkish community in the Executive, the Legislative, the Judiciary, the Public Service and the Police. Your argument that, unless the principle of equal partnership is accepted, the resulting State will be a Greek-Cypriot one, could hold if we based ourselves only on the principle of one man one vote. Since, however, we accept proportional representation of the Turkish Cypriots in all branches of Government and in the political life of the country the result will be a State in which both Greeks and Turks are fairly represented. You allege that matters which, under the 1960 Constitution, fell within the competence of the respective Communal Chambers, must be left to them otherwise Cyprus will become a Greek-Cypriot State. It seems a little strange that your side in its philosophy of partnership, which it considers essential in order that the State be a Cypriot and not a Greek-Cypriot one, has not been worried by the fact that the bulk of the financial resources for the maintenance and development of the State must, as of necessity, come from the Greek community the members of which constitute 82% of the citizens of the country.

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Part I: Constitutional Issues (c) The Principle of Functional Federalism Your letter gives the impression that the principles of partnership and that of a ‘functional federative system’ are one and the same thing. If this is correct then what I have stated on the issue of partnership applies also to the principle ‘of functional federalism’. Regarding, however, your proposal that the communities shall have separate central Local Government Authorities, each one deriving its powers and functions directly from the Constitution, the position of my side is that it is unacceptable for the reasons stated in detail in my letter of the 26th of June. (d) The Question of Guarantees In your letter of the 27th of April, 1971, dealing with our terms of reference, as you understood them, you stated the following: ‘… we would be talking – as indeed we have – purely on the internal constitutional matters and would not be tackling the international status of the independence which we would suggest to our respective sides, this being a matter to be discussed by all the interested parties at a later stage.’ I replied to this part of your letter on the 26th of June, 1971, stressing that anything agreed upon would be ad referendum to our respective sides and that ‘it was also well understood that all issues beyond constitutional and internal ones would be discussed at a different stage and level.’ I have also explained again what I made clear to you from the start of our talks, i.e. that I was not authorized to discuss the question of guarantees, and that my side’s view was that this aspect of the problem would be discussed, after an agreement on the constitutional issue was found, at a different level. I cannot see how the question of guarantees inhibits your side from proceeding to an agreement on the constitutional issue, since it is clearly understood that should it be found by our informal talks, this would be provisional and subject to an agreement on the international status of Cyprus. I must now deal with your request to clarify my stand as to whether I agree that if and when agreement is reached on matters tackled as a ‘package deal’ the remaining part of the 1960 constitution will stand in its present form, subject to such minor adjustments necessitated in the light of agreement on the ‘package deal’. You state that this is very important for your side, that it forms part of the papers exchanged between us and that you need an answer on it in order to be able to assess the merits and demerits of my last letter. I am both puzzled and surprised at this request. If you were to consult the joint document signed by us showing the points of agreement and disagreement, you would see that you have asked me whether I would accept to incorporate articles 37 to 60 and 112 to 121 of the 1960 Constitution. On each one I made clear the position of my side and our differences with regard to them emanate from the fact that we have not been able to reach complete agreement on the Executive.

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In Search of a Solution Immediately after the signing of the joint document you handed me a long list of articles of the 1960 Constitution some of which your side wished to be adopted into the new agreement, others to be adopted subject to the necessary amendments in the light of the agreement to be reached, a number of them were given as articles to be completely rewritten and no less than 26 of them were proposed for discussion. My position on this issue is as follows. Though the provisions of the 1960 Constitution were not the basis of our talks, nevertheless, if a solution is arrived at concerning the Executive, the Legislative, the Judiciary, the Police the Public Service and Local Government, we should set up a joint Committee of experts from both sides to examine, in the light of the agreement reached, what articles of the 1960 Constitution could be adopted without amendment, what articles should be adopted subject to amendments, what articles will require complete reformulation and what new articles would be required. In parallel articles of the 1960 Constitution, which either side wishes to discuss, as requested by your side with regard to 26 such articles, could be examined at a political level. In the last part of my letter of the 26th of June, 1971, I stated the following: Taking into consideration the proposals contained in your letter of the 22nd of April, 1971, and my replies in this letter, it becomes clear that on the issue of the Legislative there are no longer any differences. On the issue of the Judiciary and the Police, in the light of what I have now further proposed, it should be possible to reach an early agreement. Unfortunately, the position described above must now be reappraised in the light of the fact that the offers I made, by way of compromise, in my previous letters have been treated by you as if they were simply further new concessions of my side to be accepted without a corresponding response from your side which remained intransigently fixed on its original positions. You conclude your letter with the following paragraph. ‘There are, however, grounds on which progress can be made without affecting the political considerations of either side and I am ready to discuss this with you at your convenience.’ Though I am not clear whether this paragraph should be interpreted to mean that you wish to limit our talks only to matters which do not affect the political considerations of either side, nevertheless, I would like to be informed of what exactly you have in mind, what matters you wish to discuss and, if necessary, actually to discuss them at your early convenience. Yours sincerely, Glafcos Clerides President of the House of Representatives Clerides comments on the intercommunal talks In the year 1972, despite the internal situation amongst the Greek Cypriot community, I reached agreement with Mr Denktash on all constitutional

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Part I: Constitutional Issues issues; except on the issue regarding the central local government authority. On that issue the Turkish side abandoned its demand for the grouping of Turkish villages together in order to form areas of Turkish local government. It accepted that the House of Representatives would legislate, by simple majority, the laws relating to local government and that the two Communal Chambers would issue regulations, within the Laws enacted by the House, to be applied by the respective Greek and Turkish local government authorities. The Communal Chambers would also act as co-ordinators of the respective local government authorities. Administrative supervision would be exercised by a government civil servant. Further, agreement had already been reached on the power and functions of local government authorities. … Looking back at that formula I cannot but state that a cardinal error was committed by Makarios … [who] considered [the formula] to be a form of concealed federation. … In local government autonomy, the element of two separate and geographical cohesive areas did not exist. The Greek Cypriots and the Turkish Cypriots would have remained in their villages and towns and would have enjoyed local government autonomy under their respective communities. Furthermore the scope of local government agreed to was much more limited than that of the powers and functions of a federal province, canton or state. Makarios in rejecting the September 1972 formula on local government failed to evaluate correctly the internal situation in Cyprus, i.e. the growing danger of a coup by the Greek military forces in Cyprus acting on orders from the Greek Junta, the reaction of Turkey to such a development, and the warning given by the United States. The internal situation amongst the Greek Cypriot community was such, the risk of a military coup by the Greek forces in Cyprus so great, and the danger of a Turkish invasion so real, that the formula of September 1972 on local government should have been accepted. Had it been accepted, an agreement would have been reached on the solution of the Cyprus problem, which would have left Cyprus with a much improved constitution. Turkey would have been thus deprived of any reason, and of any excuse to invade Cyprus. The Greek junta would have been prevented by the US Government from attempting a military coup, and Cyprus would have been spared the Turkish invasion and its destructive effects.

20. Speech by Makarios delivered before the UN Security Council on 19 July 1974 After the failed attempt of unification of Greek Cypriots with Greece on 16 July 1974, Turkey tried to negotiate a joint military operation with the United

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In Search of a Solution Kingdom to intervene during the then Prime Minister Ecevit’s visit to London a few days later. Failing this, Turkey exercised her right under the 1960 Treaty of Guarantee and landed 40,000 troops on the north coast of Cyprus. Eventually, these troops controlled 37 per cent of the island and a de facto Turkish state was born. President Makarios managed to escape the coup of 15 July and made the following speech before the UN one day before the Turkish military operation. The legality of the Turkish intervention on Cyprus has been underlined by the Parliamentary Assembly of the Council of Europe Resolution 573 (1974), adopted on 29 July 1974 and by the Athens Court of Appeals in its decision of 21 March 1979. However, most international bodies and their resolutions describe the said operation as an ‘illegal invasion’. ____________________ PRESIDENT MAKARIOS: I should like at the outset to express my warmest thanks to the members of the Security Council for the keen interest they have shown in the critical situation created in Cyprus after the coup which was organized by the military regime of Greece and was put into effect by the Greek officers serving in and commanding the Cyprus National Guard. I am particularly grateful that the Security Council has agreed to postpone its meeting until my arrival here to give me the opportunity of addressing it on the recent dramatic events in Cyprus. What has been happening in Cyprus since last Monday morning is a real tragedy. The military regime of Greece has callously violated the independence of Cyprus. Without trace of respect for the democratic rights of the Cypriot people, without trace of respect for the independence and sovereignty of the Republic of Cyprus, the Greek junta has extended its dictatorship to Cyprus. It is indeed a fact that for some time now their intention was becoming obvious. The people of Cyprus had for a long time been feeling that a coup by the Greek junta was brewing, and this feeling became more intense during the recent weeks when the terrorist organization ‘EOKA B’, directed from Athens, had renewed its wave of violence. I knew all along that the illegal organization had its roots and supply resources in Athens. I became aware that the Greek officers staffing and commanding the National Guard were recruiting members for that organization, and they supported it in various ways to the point of access to the munitions supply stores of the National Guard. In the camps of the National Guard, the Greek officers were conducting open propaganda in favour of that illegal organization and turned the National Guard from an organ of the state into an instrument of subversion. Whenever from time to time I complained to Athens about unbecoming conduct by Greek officers of the National Guard, the reply was that if I had concrete evidence in proof thereof those found guilty would be recalled. From the overall tenor of their attitude, I received the unmistakable impression that their standard

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Part I: Constitutional Issues response was a pretense of innocence. A few days ago documents came into the hands of the Cyprus police clearly proving that ‘EOKA B’ was an appendage of the Athens regime. Funds were being remitted from Athens for the upkeep of this organization and detailed directives regarding its actions were also given to it. I then found it necessary myself to address a letter to the President of the Greek regime, General Gizikis, asking him to give orders for the cessation of the violence and bloodshed by ‘EOKA B’ and for its dissolution. I also requested him to recall the Greek officers serving with the National Guard, adding that my intention was to reduce the numerical strength of this Force and to turn it into an organ of the Cyprus State. I was waiting for a reply. My impression was that the Athens regime did not favour the reduction of the Force, much less the withdrawal of the Greek officers. The Greek Ambassador in Cyprus called on me, on instructions from his Government, in order to explain to me that the decrease in the numerical strength of the National Guard or the withdrawal of the Greek officers would weaken the defence of Cyprus in case of danger from Turkey. This was an argument which, even though it appeared logical, was not convincing because I knew that behind this argument other interests were hidden. I replied that as things developed I consider the danger from Turkey of a lesser degree than the danger from them. And it was proved that my fears were justified. On Saturday, 13 July, a conference under the presidency of General Gizikis was held in Athens, which lasted for many hours. It was attended by the Greek Chief of Staff of the armed forces, the Ambassador of Greece to Cyprus, [and] the commander for the purpose of discussing the content of my letter. As was stated in a relevant communiqué issued at the end of this conference, it was to be reconvened on Monday, 15 July. The reference in the communiqué to a second conference was deceiving. For a while on Monday I was waiting for a reply to my letter, the reply came, and it was the coup. On that day, I returned from my summer house on the Troodos mountains, where I had spent the weekend, and by 8 a.m. I was at my office at the Presidential Palace. Half an hour later I was welcoming in the reception room a group of boys and girls, members of the Greek Orthodox Youth from Cairo who came to Cyprus as my guests for a few days. Hardly had I greeted them when the first shots were heard. Within seconds the shots became more frequent and a member of the Presidential Guard informed me that armoured cars and tanks had passed the fence and were already in the yard of the Presidential Palace, which was shaking from mortar shells. The situation soon became critical. I tried to call the Cyprus Radio Station for the purpose of issuing a special broadcast announcing that the Presidential Palace was under attack, but I realized that the lines were cut off. Heavy shelling was ever increasing. How my life was saved seemed like a providential miracle.

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In Search of a Solution When I eventually found myself in the area of Paphos, I addressed the people of Cyprus from a local radio station informing them that I am alive and that I will struggle with them against the dictatorship which the Greek regime is trying to impose. I do not intend to occupy the time of the members of the Security Council with my personal adventure. I simply wish to add that during the second day of the armed attack the armoured cars and tanks were moving towards Paphos, while at the same time a small warship of the National Guard began shelling the Bishopric of Paphos where I was staying. Under the circumstances, I found it advisable to leave Cyprus rather than fall into the hands of the Greek junta. I am grateful to the British Government which made available a helicopter to pick me up from Paphos, transfer me to the British bases, and from there by plane to Malta and London. I am also grateful to the Special Representative of the Secretary-General and to the Commander of the Peace-Keeping Force in Cyprus for the interest which they had shown for my safety. My presence in this room of the Security Council was made possible thanks to the help given to me by the British Government and the representatives of the Secretary-General, Dr Waldheim, whose keen concern for me and for the critical situation which developed in Cyprus moves every fibre of my heart. I do not know as yet all the details of the Cyprus crisis caused by the Greek military regime. I am afraid that the number of casualties is large and that the material destruction is heavy. What is, however, our primary concern at present is the ending of the tragedy. When I reached London, I was informed of the content of the speech of the representative of the Greek junta to the United Nations. I was surprised at the way they are trying to deceive world public opinion. Without a blush, the Greek junta is making efforts to simplify the situation, claiming that it is not involved in the armed attack and that the developments of the last few days are an internal matter of the Greek Cypriots. I do not believe that there are people who accept the allegations of the Greek military regime. The coup did not come about under such circumstances as to be considered an internal matter of the Greek Cypriots. It is clearly an invasion from outside, in flagrant violation of the independence and sovereignty of the Republic of Cyprus. The so-called coup was the work of the Greek officers staffing and commanding the National Guard. I must also underline the fact that the Greek contingent, composed of 950 officers and men stationed in Cyprus by virtue of the Treaty of Alliance, played a predominant role in this aggressive affair against Cyprus. The capture of the airport outside the capital was carried out by officers and men of the Greek contingent campaign near the airport. It is enough to state on this point that certain photographs appearing in the world press show armoured vehicles and tanks belonging to the Greek con-

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Part I: Constitutional Issues tingent in Cyprus. On the other hand, the Greek officers serving with the National Guard were directing the operations. In these operations, they recruited many members of the terrorist organization ‘EOKA B’, whom they armed with weapons of the National Guard. If the Greek officers serving in the National Guard were not involved, how does one explain the fact that among the casualties in battle were Greek officers whose remains were transported to Greece and buried there? If Greek officers did not carry out the coup, how does one explain the fact of night flights of Greek aircraft transporting to Cyprus personnel in civilian clothes and taking back to Greece dead and wounded men? There is no doubt that the coup was organized by the Greek junta and was carried out by the Greek officers commanding the National Guard and by the officers and men of the Greek contingent stationed in Cyprus – and it was reported as such by the press around the globe. The coup caused much bloodshed and took a great toll of human lives. It was faced with the determined resistance of the legal security forces and the resistance of the Greek people of Cyprus. I can say with certainty that the resistance and the reaction of the Greek Cypriot people against the conspirators will not end until there is a restoration of their freedom and democratic rights. The Cypriot people will never bow to dictatorship, even though for the moment the brutal force of the armoured cars and tanks may have prevailed. After the coup, the agents of the Greek regime in Cyprus appointed a wellknown gunman, Nikos Sampson, as President, who in turn appointed as ministers known elements and supporters of the terrorist organization called ‘EOKA B’. It may be alleged that what took place in Cyprus is a revolution and that a Government was established based on revolutionary law. This is not the case. No revolution took place in Cyprus which could be considered as an internal matter. It was an invasion, which violated the independence and the sovereignty of the Republic. And the invasion is continuing so long as there are Greek officers in Cyprus. The results of this invasion will be catalytic for Cyprus if there is no return to constitutional normality and if democratic freedoms are not restored. For the purpose of misleading world public opinion, the military regime of Greece announced yesterday the gradual replacement of the Greek officers of the National Guard. But the issue is not their replacement; the issue is their withdrawal. The gesture of replacement has the meaning of admission that the Greek officers now serving in the National Guard were those who carried out the coup. Those officers, however, did not act on their own initiative but upon instructions from Athens, and their replacements will also follow instructions from the Athens regime. Thus the National Guard will always remain an instrument of the Greek military regime, and I am certain that the members of the Security Council understand this ploy. It may be said that it was the Cyprus Government which invited the Greek

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In Search of a Solution officers to staff the National Guard. I regret to say that it was a mistake on my part to bestow upon them so much trust and confidence. They abused that trust and confidence and, instead of helping in the defence of the island’s independence, sovereignty and territorial integrity, they themselves became the aggressors. I am obliged to say that the policy of the military regime in Greece towards Cyprus, and particularly towards the Greek Cypriots, has been insincere. I wish to stress that it was a policy of duplicity. For some time talks were going on between the Greek and Turkish Cypriots in search of a peaceful solution to the Cyprus problem, which on many occasions has occupied the time of the Security Council and the General Assembly of the United Nations. The representative of the SecretaryGeneral and two constitutional experts from Greece and Turkey have been attending the talks. The Security Council has repeatedly renewed, twice yearly, the mandate of the peace-keeping Force in Cyprus, expressing every time hope for a speedy solution of the problem. It cannot be said that up to now the progress of the talks has been satisfactory. But how could there be any progress in the talks while the policy on Cyprus of the regime in Athens has been double-faced? It was agreed by all the parties concerned that the talks were taking place on the basis of independence. The regime of Athens also agreed to that, and time and again the Greek Ministry of Foreign Affairs declared that the position of Greece on this issue was clear. If that were the case, why had the military regime of Greece created and supported the terrorist organization ‘EOKA B’, whose purpose was stated to be the union of Cyprus with Greece and whose members called themselves ‘unionists’? Inside the camps of the National Guard, the Greek officers continually charged that while Enosis was feasible its realization was undermined by me. When reminded that Greece had made its position clear on this and that it supported independence, their reply was that no attention should be given to the words of diplomats. Under such circumstances how was it possible for the talks to arrive at a positive result? The double-faced policy of the Greek regime was one of the main obstacles to the progress of the talks. In the circumstances that have now been created in Cyprus, I cannot foresee the prospects of the talks. I would rather say that there are no prospects at all. An agreement that may be reached by the talks would be devoid of any value because there is no elected leadership to deal with the matter. The coup d’état of the military regime of Greece constitutes an arrest of the progress of the talks towards a solution. Moreover, it will be a continuous source of anomaly in Cyprus, the repercussions of which will be very grave and far reaching, if this situation is permitted to continue even for a short time. I appeal to the members of the Security Council to do their utmost to put an end to this anomalous situation which was created by the coup of

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Part I: Constitutional Issues Athens. I call upon the Security Council to use all ways and means at its disposal so that the constitutional order in Cyprus and the democratic rights of the people of Cyprus can be reinstated without delay. As I have already stated, the events in Cyprus do not constitute an internal matter of the Greeks of Cyprus. The Turks of Cyprus are also affected. The coup of the Greek junta is an invasion, and from its consequences the whole people of Cyprus suffer, both Greeks and Turks. The United Nations has a peace-keeping Force stationed in Cyprus. It is not possible for the role of that peace-keeping Force to be effective under conditions of a military coup. The Security Council should call upon the military regime of Greece to withdraw from Cyprus the Greek officers serving in the National Guard, and to put an end to its invasion of Cyprus. I think that, with what I have placed before you, I have given a picture of the situation. I have no doubt that an appropriate decision of the Security Council will put an end to the invasion and restore the violated independence of Cyprus and the democratic rights of the Cypriot people.

21. Geneva Declaration on Cyprus of 30 July 1974 Following is the text of the declaration on Cyprus signed at Geneva on 30 July 1974 (a few days after the ceasefire) by the foreign ministers of Britain, Turkey and Greece. ____________________ 1. The Foreign Ministers of Greece, Turkey and the United Kingdom held negotiations in Geneva from 25–30 July 1974. They recognized the importance of setting in train as a matter of urgency, measures to adjust and to regularize within a reasonable period of time the situation in the Republic of Cyprus on a lasting basis, having regard to the international agreement signed at Nicosia on 16 August 1960, and to resolution 353 of the Security Council of the United Nations. They were, however agreed on the need to decide first certain immediate measures. 2. The three Foreign Ministers declared that in order to stabilize the situation the areas in the Republic of Cyprus controlled by opposing armed forces on 30 July 1974 at 22.00 hours Geneva time should not be extended. They called on all forces, including irregular forces, to desist from all offensive or hostile activities. 3. The three Foreign Ministers also concluded that the following measures should be put into immediate effect:

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In Search of a Solution (a) A security zone of sizes to be determined by representatives of Greece, Turkey and the United Kingdom in consultation with the United Nations Peacekeeping Force in Cyprus (UNFICYP) should be established at the limit of the areas occupied by the Turkish armed forces at the time specified in paragraph 2 above. This zone should be entered by no forces other than those of UNFICYP, which should supervise the prohibition of entry. Pending the determination of the size and character of the security zone, the existing area between the two forces should be entered by no forces. (b) All the Turkish enclaves occupied by Greek or Greek Cypriot forces should be immediately evacuated. These enclaves will continue to be protected by UNFICYP and to have their previous security arrangements. Other Turkish enclaves outside the area controlled by the Turkish armed forces shall continue to be protected by an UNFICYP security zone and may, as before, maintain their own police and security forces. (c) In mixed villages the functions of security and police will be carried out by UNFICYP. (d) Military personnel and civilians, detained as a result of the recent hostilities shall be either exchanged or released under the supervision of the International Committee of the Red Cross within the shortest time possible. 4. The three Foreign Ministers, reaffirming that resolution 353 of the Security Council should be implemented in the shortest possible time, agreed that within the framework of a just and lasting solution acceptable to all parties concerned and as peace, security and mutual confidence are established in the Republic of Cyprus, measures should be elaborated which will lead to the timely and phased reduction of the number of armed forces and the amounts of armaments, ammunition and other war material in the Republic of Cyprus. 5. Deeply conscious of their responsibilities as regards the maintenance of the independence, territorial integrity and security of the Republic of Cyprus, the three Foreign Ministers agreed that negotiations, as provided for in resolution 353 of the Security Council, should be carried on with the least possible delay to secure (a) the restoration of peace in the area, and (b) the re-establishment of constitutional government in Cyprus. To this end they agreed that further talks should begin on 8 August 1974, at Geneva. They also agreed that representatives of the Greek Cypriot and Turkish Cypriot communities should, at an early stage, participate in the talks relating to the constitution. Among the constitutional questions to be discussed should be that of an immediate return to constitutional legitimacy, the vice-president assuming the functions provided for under the 1960 Constitution. 193

Part I: Constitutional Issues The Ministers noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot community. Without any prejudice to the conclusions to be drawn from this situation, the Ministers agreed to consider at their next meeting the problem raised by their existence. 6. The three Foreign Ministers agreed to convey the contents of this declaration to the Secretary-General of the United Nations and to invite him to take appropriate action in the light of it. They also expressed their conviction of the necessity that the fullest cooperation should be extended by all concerned in the Republic of Cyprus in carrying out its terms. Statement by the Foreign Ministers of Greece, Turkey and Britain The Foreign Ministers of Greece, Turkey and the United Kingdom of Great Britain and Northern Ireland made it clear that the adherence of their Governments to the declaration of today’s date in no way prejudiced their respective views on the interpretation or application of the 1960 Treaty of Guarantee or their rights and obligations under the Treaty.

22. Third Vienna agreement and population exchange, 2 August 1975 Communique issued after third phase of intercommunal talks in Vienna The third round of talks on Cyprus was held in Vienna from 31 July to 2 August 1975. Preliminary discussions were held on the powers and functions of a federal government on the basis of the original Greek Cypriot proposals submitted at the first round, the Turkish Cypriot paper of 21 July and the more comprehensive paper presented by Mr Clerides at this meeting. Further examination of this subject will continue in Nicosia with a view to a final discussion, together with the other aspects relating to the solution of the Cyprus problem, at the next round of talks. Mr Denktash expressed his views on the comprehensive paper submitted by Mr Clerides and also on his own proposals for a transitional joint government submitted by him on 18 July. Mr Clerides referred to his previous position in this regard. A discussion of the geographical aspects of a future settlement of the Cyprus problem took place. It was agreed that Mr Clerides and Mr Denktash would have further private talks on this subject prior to the fourth round of the Cyprus talks with a view to preparing the discussion of this matter which will take place at that time. 194

In Search of a Solution In addition the following was agreed: 1. The Turkish Cypriots at present in the South of the Island will be allowed, if they want to do so, to proceed North with their belongings under an organized programme and with the assistance of UNFICYP. 2. Mr Denktash reaffirmed, and it was agreed, that the Greek Cypriots at present in the North of the Island are free to stay and that they will be given every help to lead a normal life, including facilities for education and for the practice of their religion, as well as medical care by their own doctors and freedom of movement in the North. 3. The Greek Cypriots at present in the North who, at their own request and without having been subjected to any kind of pressure, wish to move to the South will be permitted to do so. 4. UNFICYP will have free and normal access to Greek Cypriot villages and habitations in the North. 5. In connection with the implementation of the above agreement priority will be given to the reunification of families, which may also involve the transfer of a number of Greek Cypriots, at present in the South, to the North. The question of displaced persons was also re-examined. Although both sides again affirmed that they were not knowingly holding undeclared prisoners-of-war or other detainees, it was agreed mutually to extend full facilities for searches in response to information given by either side. Both sides declared that the Nicosia International Airport, which has been repaired by the United Nations under the agreement reached at the first round, can be used, as a first step, by the United Nations for its needs. The fourth round of talks will take place, due to the Secretary-General’s commitments in regard to the General Assembly, at United Nations headquarters in New York on 8 and 9 September 1975. 2 August 1975

23. High-level agreement of 12 February 1977: bio-zonality and federalism The following is the text of the agreement between the then president of the republic, Archbishop Makarios, and the Turkish Cypriot leader, Mr Denktash, concluded on 12 February 1977 during a meeting under the auspices of the United Nations Secretary-General. The text of the agreed instructions (guidelines) reads as follows:

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Part I: Constitutional Issues 1. We are seeking an independent, non-aligned, bi-communal Federal Republic. 2. The territory under the administration of each community should be discussed in the light of economic viability or productivity and land ownership. 3. Questions of principles like freedom of movement, freedom of settlement, the right of property and other specific matters, are open for discussion, taking into consideration the fundamental basis of a bi-communal federal system and certain practical difficulties which may arise for the Turkish Cypriot Community. 4. The powers and functions of the central federal government will be such as to safeguard the unity of the country having regard to the bicommunal character of the State.

24. Ten-point agreement of 19 May 1979 5. Priority will be given to reaching agreement of the resettlement of Varosha under UN auspices simultaneously with the beginning of the consideration by the interlocutors of the constitutional and territorial aspects of a comprehensive settlement. After agreement on Varosha has been reached it will be implemented without awaiting the outcome of the discussion on other aspects of the Cyprus problem. 6. It was agreed to abstain from any action which might jeopardize the outcome of the talks, and special importance will be given to initial practical measures by both sides to promote goodwill, mutual confidence and the return to normal conditions. 7. The demilitarization of the Republic of Cyprus is envisaged, and matters relating thereto will be discussed. 8. The independence, sovereignty, territorial integrity and non-alignment of the Republic should be adequately guaranteed against union in whole or in part with any other country and against any form of partition or secession.

25. The unilateral declaration of independence (15 November 1983) and its aftermath Do the Turkish Cypriots have a right of self-determination? Professor Elihu Lauterpacht, CBE, QC (9 March 1990) 5

Turkish Republic of Northern Cyprus Opinion 1. I have been asked to advise as a matter of urgency on the legal justification for the position taken on 28 February 1990 by the President of the 196

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2.

3.

4.

5.

6.

7.

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Turkish Republic of Northern Cyprus, Mr Denktas, regarding the wording to be used to describe the participation by the Turkish Cypriots in any settlement that may be reached with the Greek Cypriots for the future government of Cyprus. Mr Denktas noted that whatever the words that may be used whether communities, peoples, peoples and communities, national communities, national groups, constituent parties, constituent partners, or partners – they will not run counter to the view that each of the parties, in participating in the hoped-for settlement, is exercising its right of selfdetermination. The reason for this concern lies in the objection of the Turkish Cypriot community to any words that may give rise to such implications as the following: that in these negotiations one group is legally superior or inferior to the other; that the Greek Cypriot community, although treated by the United Nations as ‘the Government of Cyprus’ would by agreeing to a federal-type settlement be seen as in any way legally bestowing powers upon the Turkish Cypriot community; or that by entering into a settlement along the general lines contemplated the Turkish Cypriot community would in any degree be renouncing its legal and national identity. The Secretary-General of the United Nations responded that ‘any change in terminology could alter the conceptual framework to which all have thus far adhered’ and concluded that ‘we have an impasse of a substantive kind, which raises questions regarding the essence of the mandate of good offices given to me by the Security Council.’ The question is, therefore, what is the correct interpretation of the mandate conferred upon the Secretary-General? This is essentially a matter of the interpretation of Security Council resolution 367 (1975) of 12 March 1975 which, in paragraph 6, requested the Secretary-General ‘to undertake a new mission of good offices’. In particular, what is the legal position of those to whom the Secretary-General was to address his mission? The resolution describes those to whom the Secretary-General is to render his good offices in three places: in paragraph 2, the Council regrets certain conduct ‘as tending to compromise the continuation of negotiations between the representatives of the two communities on equal footing’; in paragraph 6, apparently referring to the same persons, the resolution requires the Secretary-General ‘to convene the parties under new agreed procedures’; and, in paragraph 7, the Security Council called upon ‘the representatives of the two communities to cooperate closely with the Secretary-General’. There appears to be nothing on the face of that language taken by itself, to suggest that there is any inequality of status between the parties or that either of them is doing anything other than further exercising its right of self-determination by participating in the settlement negotiations. If, as is correct in the process of interpretation, one looks to the back-

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ground of the resolution and to the manner in which it has subsequently been applied, one finds ample confirmation for this view. So far as the background is concerned, it must be recalled that the emergence of Cyprus as an independent State in 1960 was an act of selfdetermination. The British Colonial Secretary, Mr Lennox-Boyd, described the emerging situation in these terms in 1956: ‘it will be the purpose of Her Majesty’s Government to ensure that any exercise of selfdetermination should be effected in such a manner that the Turkish Cypriot community, no less than the Greek Cypriot community, shall, in the special circumstances of Cyprus, be given freedom to decide for themselves their future status. In other words, Her Majesty’s Government recognise that the exercise of self determination in such a mixed population must include partition among the eventual options.’ (Statement in the House of Commons, 19 December 1956.) This statement was confirmed by the Prime Minister, Mr Macmillan, on 26 June 1958, who also described the Colonial Secretary’s assurances as ‘pledges’. The form taken by this act of self-determination was unique in character. Neither before nor since has the ending of a colonial situation been enshrined in a constitution that was guaranteed in treaty form on the plane of international obligation by the three members of the United Nations most closely concerned and countersigned and adopted by the leaders of the two communities directly affected. This was an evident and necessary reflection of the uneasy relationship between two peoples divided deeply by religion, language and culture, and of the apprehension that each might seek a closer association with the country to which each had an affinity. Three years later the Greek Cypriot community used its power to prevent the Turkish Cypriot community from playing its proper role in the Government of Cyprus. There is also uncontroverted and incontrovertible evidence that those who led this action had in mind a further breach of the Treaty of Guarantee, namely, union with Greece. Thus, not only did the Greek Cypriot community or, as it claims to be, the Government of the Republic of Cyprus break the Constitution and violate its pledged word in an absolutely fundamental way; it also repudiated a solemnly assumed treaty undertaking which formed an indispensable element in any legal assessment of its position. Both the United Kingdom and Turkey protested. The fact that States have been prepared to recognise and to accord a place in the United Nations to the constitutionally unlawful Greek Cypriot regime is comparable to the recognition, many times repeated in the history of international relations, of de facto governments that have assumed power after a successful insurrection and repudiation of constitutional norms. But that de facto acceptance by the international community could not, and did not, in any way expunge the

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13.

14.

15.

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international illegality or, even more to the point, deprive the Turkish Cypriot community of its entitlement, possessed uncommon with the Greek Cypriot community, to the enjoyment of its right of selfdetermination. The subsequent condemnation in Security Council resolution 541 (1983) of the exercise of this right by the establishment of the Turkish Republic of Northern Cyprus as a statal entity in Northern Cyprus responding to the factual division of the country and parallel to the one existing in Southern Cyprus is legally bewildering. If a balanced and proportionate reaction to the breach of the undertakings given in the Treaty of Guarantee is condemned by the United Nations, this sets at naught the value of any international guarantee, no matter by whom given. Be that as it may, events subsequent to resolution 367 confirm that for the purposes of the ensuing series of negotiations the two communities regarded themselves, and were regarded by the United Nations, as being equal in status and that no special rights were attributable to the Greek Cypriot regime by reason of its de facto local and international status. It is sufficient to list some of the most important texts that evidence this position: the High-Level Agreement between the leaders of the two communities, 1977 and 1979; the Vienna Working Points of 1984; the Draft Framework Agreement on Cyprus presented by the Secretary-General on 29 March 1986; the Geneva Accord of 24 August 1988; and the Opening Statement by the Secretary-General at the most recent round of talks on 26 February 1990 when, in particular, he stressed that the relationship between the Greek Cypriot community and the Turkish Cypriot community ‘is not one of majority and minority, but one of two communities in the State of Cyprus’ and that ‘the participation of the two communities is on an equal footing’. It need hardly be added that there is nothing in intervention by Turkey in 1974 that changes the legal position. This was a lawful exercise by Turkey of its rights as a guarantor under Article IV of the Treaty of Guarantee. That lawfulness was expressly acknowledged by the Standing Committee of the Consultative Assembly of the Council of Europe in a resolution on 29 July 1974, which referred to the exercise by the Turkish Government of its ‘right of intervention in accordance with Article 4 of the Guarantee Treaty of 1960’. The British Government, though not expressing positive agreement with that view, has never despite repeated opportunities denied it; and the Foreign Affairs Committee of the British House of Commons has said in relation to the British Government’s own position that ‘there can be no question that the Treaty makes it perfectly clear that there is a legal right to intervene’. Clearly what Britain is entitled to do, Turkey is equally entitled to do. Nor is there anything in the situation that suggests that either side in concluding new arrangements would thereby be exhausting its inherent

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Part I: Constitutional Issues right of self-determination. The factor that must maintain the unity of an internationally and constitutionally re-established Republic of Cyprus must be the unwavering adherence of both sides to their promises, not the denial to either side of its right freely to dispose of its own future. 17. In the light of the above, it does not appear that there is any legal basis for objecting to the assessment of the position given by Mr Denktas. (*) Issued as a document of the UN General Assembly and of the Security Council under reference A/44/928 and S/21190 on 14 March 1996. Lauterpacht, CBE, QC, 3 Essex Court, Temple, London.

26. The constitution of the Turkish Republic of Northern Cyprus (May 1985) PREAMBLE Whereas the Turkish Cypriot People is an inseparable part of the great Turkish Nation which lived independent and fought for its rights and liberties all along its history; and Whereas the Turkish Cypriot People, in the face of events directed against its national existence and right to life, since 1878 when it was broken away from its motherland, which were intensified especially after 1955 and took the form of armed terrorism, aggression and suppression, has organised its resistance as a mature community in unity and integrity; and Whereas the Turkish Cypriot People has established that there cannot be individual rights and liberties without the acquisition of communal rights and Liberties, through the bitter experiences it had undergone until the year 1974 when the Peace Operation, which was carried out by the Heroic Turkish Armed Forces by virtue of the Motherland’s natural, historical and legal right of guarantorship emanating from Agreements, provided to the Turkish Cypriots the means of living in peace, security and liberty; and Whereas, in the face of attempts made to deprive it of all its rights emanating from history, international agreements and from human rights declarations and covenants and to destroy completely its existence in Cyprus; and in the face of a Republic of Cyprus which has, since 21 December 1963, Come under the monopoly of the Greek Cypriots through unlawful means, which has been transformed into a Greek Cypriot State not only from the point of view of its composition but also from the point of view of the policy it followed, and Which has, as a result of its racist and discriminatory policy

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In Search of a Solution and actions serving Pan-Hellenist expansionism, departed from the Agreements and the principles embodied in the Constitution and thus lost its legitimacy, the Turkish Cypriot People has, in exercise of its right of selfdetermination, proclaimed before the world and history the establishment of the Turkish Republic of Northern Cyprus; Now, therefore, For the purposes of: Giving life to the Proclamation of Independence which was accepted unanimously and with great enthusiasm on 15th November 1983; Continuing its existence in its own homeland in full security and humane order; Establishing a democratic and secular State with a plural party system based on social justice aiming to protect human rights and liberties, the rule of law and the peace and welfare of the individual and Community; and Being faithful to the Principles of Atatürk and in particular for spreading His principle of ‘Peace in the Homeland, Peace in the World’; THE TURKISH CYPRIOT PEOPLE with whom the absolute right to sovereignty rests; Approves and proclaims this Constitution passed by the Constituent Assembly of the Turkish Republic of Northern Cyprus as the Constitution of the Turkish Republic of Northern Cyprus established on 15th November 1983; Entrusts it to the vigilant guarding of its children who are devoted to freedom, justice and virtue, with the belief that the real guarantee lies in the hearts and the will of the citizens. PART I – GENERAL PROVISIONS The Form and Characteristics of the State: Article 1 The Turkish Republic of Northern Cyprus is a secular republic based on the principles of supremacy of democracy, social justice and law. The Integrity, Official Language, Flag, National Anthem and Capital of the State: Article 2 1. The State of the Turkish Republic of Northern Cyprus is an indivisible whole with its territory and people. 2. The official language is Turkish. 3. The Flag and the National Anthem of the Turkish Republic of Northern Cyprus are prescribed by law, 4. The capital of the Republic is Lefkosa. Sovereignty: Article 3 1. Sovereignty shall vest in the people comprising the citizens of the Turkish Republic of Northern Cyprus, without condition or reservation.

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Part I: Constitutional Issues 2. The people shall exercise its sovereignty, within the framework of the principles laid down by the Constitution, through its competent organs. 3. No group, class or person can claim sovereignty to itself. 4. No organ office or authority can exercise any power which does not emanate from this Constitution. The Legislative Power: Article 4 Legislative power shall vest in the Assembly of the Republic on behalf of the people of the Turkish Republic of Northern Cyprus. The Duties and Powers of the Executive: Article 5 The executive duties and powers shall be carried out and exercised by the President of the Republic and the Council of Ministers in accordance with the Constitution and laws. Judicial Powers: Article 6 The judicial powers shall be exercised on behalf of the people of the Turkish Republic of Northern Cyprus by independent courts. Supremacy and Binding Force of the Constitution: Article 7 1. Laws shall not be contrary to or inconsistent with the Constitution. 2. The provisions of the Constitution shall be the fundamental legal principles binding the legislative, executive and judicial organs, the administrative authorities of the State and individuals. Provisions that cannot be changed: Article 9 The provisions embodied in Article 1, in paragraphs (1) and (2) of Article 2 and In Article 3 of this Constitution cannot be changed; nor can any proposal be made for changing them. PART II – FUNDAMENTAL RIGHTS, LIBERTIES AND DUTIES Chapter I: General Provisions The Nature of Fundamental Rights and their Protection: Article 10 1. Every person has, by virtue of his existence as an individual, personal fundamental rights and liberties which cannot be usurped, transferred or renounced.

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In Search of a Solution 2. The state shall remove all political, economic and social obstacles which restrict the fundamental rights and liberties of the individual in a manner incompatible with the individual’s well-being; social justice and the principles of a state under the rule of law; it shall prepare the necessary conditions for the development of the individual’s material and moral existence. 3. The legislative, executive and judicial organs of the State, within the spheres of their authority, shall be responsible for ensuring that the provisions of this Part are wholly implemented. The Essence and Restriction of Fundamental Rights and Liberties: Article 11 Fundamental rights and liberties can only be restricted by law, without affecting their essence, for reasons such as public Interest, public order, public morals, social justice, national security, public health and for ensuring the security of life and property of persons. Fundamental Rights and Liberties and Powers not to be Misused: Article 12 No provision of this Constitution shall be construed or interpreted as to give any real or legal person, group or class of persons the right and authority to commit acts or to engage in activities aimed at changing the rights and status of the Turkish Republic of Northern Cyprus and of the Turkish Cypriot people guaranteed by this Constitution or at destroying the order established by this Constitution or at removing the fundamental rights and liberties recognised by this Constitution. Right to Life and Corporal Integrity: Article 15 1. Every person has the right to life and corporal integrity. 2. No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence for which death penalty is provided by law. A law may provide for such penalty only in cases of high treason in times of war, offence of piracy and terrorism jure gentium or repeated conviction of an offence punishable with death sentence. 3. Deprivation of life shall not be deemed to be inflicted in contravention of the provisions of paragraphs (1) and (2) when it results from the use of force which is no more than absolutely necessary: (a) in defending one’s self or property against the infliction of a proportionate and otherwise unavoidable and irreparable evil; or (b) in effecting an arrest or in preventing an escape of a person lawfully detained; or

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Part I: Constitutional Issues (c) in action taken for the purpose of quelling a riot or insurrection, when and as provided by law. Liberty and Security of Person: Article 16 1. Every person has the right to personal liberty and security. 2. No person shall be deprived of his liberty save in the following cases when and as provided by law: (a) the detention of a person after conviction by a competent court; (b) the arrest or detention of a person for non-compliance with the lawful order of a court; (c) the arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the detention of persons who are likely to spread an infectious disease, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the arrest or detention of a person to prevent him from making an unauthorised entry into the territory of the State or of an alien against whom action is being taken with a view to deportation or extradition; (g) the arrest or detention of an alien for the purpose of preventing him from leaving the Republic in order to evade a financial responsibility; (h) the detention of those citizens of the Turkish Republic of Northern Cyprus who are nationals of more than one country, for the execution of Court decisions given against them for offences committed under the laws of the other country of which they are the nationals; provided that there is in force between the Turkish Republic of Northern Cyprus and that other country an agreement for extradition and for reciprocal enforcement of judgments. 1. Save when and as provided by law in case of a flagrant offence punishable with death or imprisonment, no person shall be arrested save under the authority of a reasoned judicial warrant issued according to the formalities prescribed by law. 2. The position of the person arrested or detained shall be brought to the knowledge of his close relatives at the earliest possible time and quickly, except in cases where there are grave objections to the disclosure of the extent and substance of the investigation. 3. Every person arrested or detained shall be informed, at the time of his arrest, in a Language which he understands of the reasons of his arrest or detention and shall be allowed to have immediately the services of a lawyer to be chosen by him or by his relatives. 204

In Search of a Solution 4. The person arrested shall, as soon as practicable and in any event not later than twenty-four hours after his arrest, be brought before a judge, if he is not in the meantime released. 5. The judge shall promptly proceed to inquire into the grounds of the arrest in a language understandable by the person arrested and shall, as soon as possible and in any event not later than three days from such appearance, either release the person arrested on such terms as he may deem fit or where the investigation into the commission of the offence for which he has been arrested has not been completed remand him in custody. The judge may remand him in custody for a period not exceeding eight days at any one time: Provided that the total period of such remand or detention in custody shall not exceed three months from the date of the arrest; on the expiration of the said period every person or authority having the custody of the person arrested or detained shall forthwith set him free. 6. The exercise of the right of appeal against the decisions of the judge under paragraph (7) cannot be denied. 7. Every person who is deprived of his Liberty by reason of his arrest or detention shall be entitled to take legal proceedings so that the lawfulness of his detention may be decided speedily by a court. If his detention is found to be illegal, the Court shall order his release. 8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall be entitled to claim compensation by filing an action. Rights Relating to Judicial Trials: Article 17 1. No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or special courts under any name whatsoever is prohibited. 2. Every person shall, in the determination of his civil rights and obligations or of any criminal charge against him, be entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Judgment shall be reasoned and pronounced in public session. 3. The press and the public may be excluded from all or any part of the trial upon a decision of the court in cases where it is in the interest of the national security or the constitutional order or the public order or the Public safety or the public morals or where the interest of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the court, publicity would prejudice the interests of justice. 4. Every person has the right: 205

Part I: Constitutional Issues (a) to be informed of the reasons why he is required to appear before the court; (b) to present his case before the court and to have sufficient time necessary for its preparation; (c) to adduce or cause to be adduced his evidence and to demand that witnesses are directly examined according to law; (d) to have the services of a lawyer chosen either by him or by his relatives and where the interests of justice so require to have free legal assistance as provided by law; (e) to have free assistance of an interpreter if he cannot understand or speak the language used in court. Privacy of Individual’s Life: Article 19 1. Every person shall have the right to demand that his private and family life is respected. There shall be no violation of the privacy of individual’s private and family life. The exceptions necessitated by legal proceedings shall be reserved. 2. There shall be no bodily search of a person or his private papers and belongings and these shall not be confiscated, in cases expressly defined by law, without a court or judge’s order made in accordance with normal procedure; and in cases where a delay is considered undesirable from the national security and public order point of view, without an order of the competent authority duly empowered by law. Freedom of Conscience and Religion: Article 23 1. Every individual has freedom of conscience, religious faith and opinion. 2. Forms of worship and religious ceremonies and rites are free provided they do not contravene public order or public morals or the laws enacted for these purposes. 3. No person shall be compelled to worship; to participate in religious ceremonies and rites or to reveal his religious faith or belief; and no person shall be reproached for his religious faith or belief. 4. Religious education and teaching is carried out under the supervision and control of the State. 5. No person shall exploit or abuse, in any manner whatsoever, religion or religious feelings or things considered sacred by religion for the purpose of founding, even though partially, the basic social, economic, political or legal order of the State on religious precepts or for the purpose of secureing political or personal advantage or influence. In the case of real or legal persons violating this prohibition or inducing others to do so, the provisions of the relevant law shall be applied and political parties shall be permanently closed down by the Supreme Court sitting as the Constitutional Court.

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In Search of a Solution Freedom of Thought, Speech and Expression: Article 24 1. Every person has the right to freedom of thought or opinion. No person shall be compelled to disclose his thoughts and opinion. There is no offence of thought. 2. Every person has the right to express and publish his thoughts and opinion, by himself or collectively, by word of mouth, in writing, through pictures or other media. This right includes freedom to express opinion and to receive and impart information and ideas without interference by any public authority and regardless of the boundaries of the State. 3. The exercise of the freedom of speech and of the freedom of expression may be subject to such formalities, conditions, restrictions, or penalties as are necessary and prescribed by law only in the interest of national security or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary. Freedom of the Press: Article 26 1. The press and publication are free for all citizens and shall not be subjected to censorship. 2. The State shall take the necessary measures to ensure the freedom of the press and of receiving information. 3. The freedom of the press and of receiving information may be restricted by law for the purpose of safeguarding public order or national security or public morals or for preventing attacks on the honour, dignity or rights of persons and for preventing instigations to commit an offence or for the purpose of assuring the proper functioning of the judiciary in accordance with its aims. 4. Save when it is imposed by a decision to be given by any court or judge, within the limits to be prescribed by law, for the purpose of ensuring the proper functioning of the judiciary, in accordance with its aims, no ban shall be imposed on the publication of news about events. The Right of Assembly and Demonstration: Article 32 Citizens have the right to organize an unarmed and non-violent assembly or public demonstration without obtaining prior permission. This right may be restricted by law only for safeguarding public order.

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Part I: Constitutional Issues The Right to Form Associations: Article 33 1. Every citizen has the right to from associations without prior permission. The manner and method of exercising this right shall be laid down by law. The law may impose restrictions in the interests of national security, public order and public morals. 2. No citizen shall be compelled to become a member of any association or to remain as a member of any association. 3. Associations may, where provided by law, be closed down by an order of a judge; and in cases where a delay is considered objectionable from the point of view of safeguarding national security, public order or public morals, an association’s functions may be suspended until a decision is given by a judge, by an order of the authority expressly empowered by law. Chapter III: Social and Economic Rights and Liberties and Duties General Provision Relating to Property Rights: Article 36 1. Every citizen has the right to ownership and inheritance. These rights may only be restricted by law in the interest of the public. 2. Restrictions or limitations which are absolutely necessary in the interests of the public safety or the public health or the public morals or the town and country planning or the development and utilization of any property for public benefit or for the protection of the rights of others may be imposed by law on the exercise of such right. 3. Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of such property; in case of disagreement such compensation shall be determined by a civil law court. 4. The provisions of paragraphs (2) and (3) above shall not effect the provisions inserted by law for the purpose of recovering any tax or penalty, executing any judgment, enforcing any contractual obligation or protecting life or property from danger. 5. The right of the State to the immovable properties mentioned in Article 159 is reserved. Protection of Land: Article 37 The State shall take the necessary measures for the purpose of achieving the efficient utilization of land and for providing farmers who have no land or who have insufficient land, with enough land. For these purposes the law may specify the extent of such land having regard to the requirements of different agricultural regions and kinds of farming.

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In Search of a Solution Acquisition and Requisition: Article 41 The State, municipal Corporations and such public corporate bodies or institutions of public utility as are empowered by law to make compulsory acquisitions, shall be entitled to acquire compulsorily any movable or immovable property or any right over or interest in any such property: (a) for a purpose of public utility specifically provided by a general law for compulsory acquisition; and (b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; and (c) upon payment in cash, immediately or by instalments to be prescribed by law and spread over a period not exceeding five years, of a just and equitable compensation which shall be determined, in case of disagreement, by a civil law court. 1. The way and manner in which the value of the compulsory acquisition shall be assessed shal1 be regulated by law. 2. Any immovable property or any right over, or interest in, such property which has been compulsorily acquired, shall be used only for the purpose for which it has been acquired. If within three years of the acquisition such purpose has not been attained, the acquiring authority shall, immediately after the expiration of the said period of three years, offer the property at the price it was acquired to the person from whom it was acquired. The person receiving this offer shall signify his acceptance or rejection of the offer within three months of the receipt thereof; if he signifies acceptance and returns again within a period of three months from such acceptance, the acquisition price, the property shall be returned to him immediately. 3. The provisions in paragraph 2 above shall not affect any provisions inserted by law for the purpose of recovering any taxes or penalty, executing any judgment, enforcing any contractual obligation or protecting life or property against danger. 4. The State may requisition any movable or immovable property: (a) for a purpose of public utility specifically provided by a general law for requisitioning; and (b) when such purpose is established by a decision of the requisitioning authority and made under the provisions of such law stating clearly the reasons for such requisitioning; and (c) for a period not exceeding three years; and (d) upon payment in cash, immediately or by instalments to be prescribed by law and spread over a period not exceeding five years of a just and equitable compensation which shall be determined, in case of disagreement, by a court exercising civil Law jurisdiction. 209

Part I: Constitutional Issues 5. Any interested person shall have the right of recourse to the court in respect of any of the provisions of this Article and such recourse shall act as a stay of proceedings for the compulsory acquisition. Any decision of the court under this paragraph shall be subject to appeal. Acquisitions, Requisitions and Restrictions connected with Vakf Properties: Article 42 1. Matters relating to the acquisition and requisition of Vakf properties shal1 be regulated by law in accordance with the Basic Principles of Evkaf (Ahkâ mul Evkaf). Provisions relating to the restrictions and limitations which shall be imposed on Vakf properties for purposes of town and country planning, shall also be specified in such law. 2. In cases where any act of limitation or restriction is involved, the court may order stay of proceedings in respect thereof. Nationalization: Article 43 Private enterprises which possess the characteristics of a public service and the movable and immovable properties belonging to aliens may, where necessitated in the public interest be nationalized provided that their actual value is paid in the manner indicated by law. Where the law provides that payment be made by instalments, such payment shall be effected by equal instalments spread over a period not exceeding ten years. Any amount not paid in advance shall be subject to the highest rate of interest prescribed for State loans. Conditions of Employment: Article 50 1. No person shall be employed in any work which is incompatible with his age, capability and sex. 2. Children, young persons, women and persons who are physically and mentally handicapped shall be accorded special protection in respect of conditions of work. Right to Rest: Article 51 1. Every person who works has the right to rest. 2. The right to weekend and to national and religious holidays with pay and to annual leave with pay, shall be regulated by law. Equity in Pay: Article 52 The State shall adopt the necessary measures enabling workers to receive just

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In Search of a Solution and equitable wages commensurate with the work they perform and sufficient to secure a standard of living befitting human dignity. The Right to Establish Trade Unions: Article 53 1. Employers and employees have the right to establish, without prior permission, trade unions and federations of trade unions, to become members and to resign from membership thereof freely. The way and manner in which these rights shall be exercised shall be prescribed by law. The law may impose restrictions for the purpose of safeguarding national security, public order and public morals. 2. The rules and the administration and functioning of trade unions and trade union federations shall not be contrary to democratic principles. The Right to Collective Agreement and to Strike: Article 54 1. Workers shall have the right to collective agreement and to strike in their relations with employers for the purpose of protecting and improving their economic and social positions. 2. The exercise of the right to strike may be regulated by law only for the purpose of safeguarding the national security or the Constitutional order or the public order or the rights and liberties guaranteed by this Constitution to any person. 3. Judges, law officers, members of the armed forces, members of the police and the civil defence personnel holding key positions, have no right to strike. 4. The rights of the employers shall be regulated by law. Right to Social Security: Article 55 Every person has the right to social security. It shall be one of the duties of the State to establish, and help establish social insurance and similar social security schemes and social assistance organizations, for the purpose of ensuring this right. Chapter IV: Political Rights and Duties Citizenship: Article 67 All persons who – (a) acquired citizenship of the Republic of Cyprus under Annex D of the Treaty of Establishment of the 1960 Republic of Cyprus and were ordinarily resident in the Turkish Republic of Northern Cyprus on the 15th November, 1983; 211

Part I: Constitutional Issues (b) acquired citizenship of the Turkish Federated State of Cyprus before the 15th November, 1983; shall be citizens of the Turkish Republic of Northern Cyprus. The rights to acquire citizenship of the Turkish Republic of Northern Cyprus of Cypriots of Turkish origin, who possessed the right to acquire citizenship of the Republic of Cyprus under Annex D of the 1960 Treaty of Establishment of the Republic of Cyprus, but were not on the 15th November 1983 ordinarily resident in the Turkish Republic of Northern Cyprus, shall be reserved. (c) The children of a father or mother who acquired the right to become citizens but died before exercising such right and the surviving spouses of such persons, may acquire citizenship of the Republic of Cyprus by application. (d) A child born in North Cyprus after the 15th November 1983, whose father or mother is a citizen of the Turkish Republic of Northern Cyprus, shall be a citizen of the Turkish Republic of Northern Cyprus. (e) The grant of citizenship to children born in the Turkish Republic of Northern Cyprus after the 15th November 1983 of a father or mother who is not a citizen of the Turkish Republic of Northern Cyprus, shall be regulated by law in accordance with the provisions of international law. (f) No one shall be deprived of citizenship acquired by birth from a father or mother who is a citizen of the Turkish Republic of Northern Cyprus or a Cypriot Turk. (g) Citizenship shall, subject to the above provisions of this Article, be acquired under the conditions provided by law and shall be lost only in the circumstances provided by law. (h) The right of citizenship acquired under legal conditions before the coming into operation of this Constitution shall be reserved. The Right to elect, to be elected and to participate in a Public Referendum: Article 68 1. It shall be the right and duty of every citizen who has completed the age of eighteen years to vote at elections and referendums. 2. Every citizen who has completed the age of 25 years shall have the right to be elected. In addition he must have ordinarily resided in North Cyprus for at least three years immediately preceding the elections and completed his national service. 3. The other qualifications for electing and being elected shall, subject to the provisions of this Constitution, be regulated by Law. 4. Elections and referendums shall be held in accordance with the principles of free, equal, secret, direct ballot and universal suffrage, open counting and tabulation and shall continue without interruption until the counting and tabulation are completed.

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In Search of a Solution 5. To become a candidate shall not be subject to the condition of resigning from the public service. Matters such as which public officers and under what conditions such officers can became candidates from the point of view of the security elections and of the public service, shall be regulated; by law. Judges, law officers, members of the armed forces and members of the police force shall not become candidates and shall not be elected unless they first resign from their posts. 6. In any referendum and in the presidential and general elections, national servicemen may vote at the nearest polling station to their units. 7. The other provisions connected with, elections and referendums and the exercise of the rights under this Article shall be regulated by law. The Right to form Political Parties and the Place of the Parties in Political Life: Article 70 1. Citizens have the right to form political parties and in accordance with normal procedure to become members, or to resign from membership, of parties. 2. Political parties are formed without prior permission and function freely. 3. Political parties, whether in power or in opposition, shall be the indispensable elements of democratic political life. 4. Political parties shall not be entitled to take part in an election unless they are formed and become a corporate body at least ninety days before such election. 5. Judges, law officers, members of armed forces, members of police force, civil servants and persons under the age of eighteen years cannot form political parties or become members of political parties. 6. The assistance to be given by the State to political parties shall be regulated by law. The Principles with which Political Parties must comply: Article 71 1. The rules, programmes and activities of political parties shall not violate the indivisibility or the integrity of the State together with its territory and people the human rights, the sovereignty of the people and the principles of a democratic and secular Republic and the principles of Atatürk. 2. Political parties shall not carry out any activities outside their rules and programmes; and shall not exceed the limitations imposed by Article 12 of the Constitution. 3. The activities and decisions of political parties concerning their internal affairs shall not violate democratic principles. 4. The financial control of political parties shall be carried out by the Supreme Court sitting as the Constitutional Court. 213

Part I: Constitutional Issues 5. The Attorney-General of the Republic shall, after the formation of political parties, control whether their rules and programmes and the legal position of their founders are in conformity with the provisions of the Constitution and laws and shall follow up their activities. 6. Political parties shall not receive pecuniary assistance from foreign States and shall not participate in the decisions taken by such States against the independence and territorial integrity of the Turkish Republic of Northern Cyprus. 7. Political parties acting in contravention of the provisions of this Article may be permanently closed by the Supreme Court sitting as the Constitutional Court, upon the institution of an action by the Attorney-General of the Republic. 8. The control of the formation and activities of political parties and their closing down shall, subject to the above provisions, be regulated by Law. 9. The provisions of this Article shall not be interpreted or applied as preventing political parties from engaging in activities for the amendment of this Constitution in accordance with Article 162 thereof. Declaration of Property Owned: Article 73 The declaration of property owned by public servants upon entry into, and during their service in, the public service shall be regulated by law. Those performing duties in the legislative and executive organs shall not be exempted from this requirement. National Service: Article 74 1. National service in the armed forces shall be the right and sacred duty of every citizen. 2. Conditions relating to national service shall be regulated by law. PART III – THE LEGISLATURE Chapter I: The Constitution of the Assembly of the Republic: Article 77 The Assembly of the Republic shall be composed of fifty deputies. The Duties and Powers of the Assembly of the Republic: Article 78 The duties and powers of the Assembly of the Republic shall be to enact, amend and repeal laws; to exercise control over the Council of Ministers and Ministers; to debate and approve bills concerning the budget and final accounts; to decide on the issue of currency and on the declaration of war; to approve the ratification of international agreements; to approve development plans; to decide on the grant of general and special amnesty and on the 214

In Search of a Solution carrying out of death sentences pronounced by Courts which have become definite and to exercise the powers and perform the duties envisaged in the other Articles of the Constitution. Elections for the Assembly of the Republic: Article 79 1. The elections for the Assembly of the Republic shall be held every five years. 2. The electoral system and principles governing it shall be regulated by law. 3. The powers of the Assembly which has been dissolved shall continue until a new Assembly is elected in its place. 4. By-elections shall be held every year on a specified date. No by-elections shall be held within the period of one year preceding the general elections. 5. If the holding of elections shall become impossible due to emergency reasons, the elections may be postponed for a period of one year by the Assembly of the Republic. The decision to postpone the elections shall be taken by a two-third majority of the total number of members. The Inviolability of the Assembly of the Republic and the Internal Security and Administrative Service: Article 80 1. The Assembly of the Republic is inviolable. No one can restrict the freedom of the Assembly, act in a manner disturbing its peace and insult its formal personality. 2. The internal security and administrative services within the premises, installations, additions and land of the Assembly of the Republic shall be provided and run by the President of the Assembly of the Republic. For police and other internal security services, sufficient number of men shall be allocated to the President of the Assembly of the Republic by the authorities concerned. The Meetings and Procedure of the Assembly of the Republic: Article 81 1. The meetings of the Assembly of the Republic shall be held in the Assembly’s own premises. 2. The Assembly of the Republic shall meet without summons at 10.00 hours on the tenth day following the publication of the results of the general elections in the Official Gazette. The eldest deputy present at the meeting shall act as the President of the Assembly and the two youngest deputies present at the meeting shall perform the duties of Clerks to the Assembly. At this meeting the deputies shall take the oath and then the Assembly shall proceed with the election of its Presidential Council. The election of the Presidential Council of the Assembly shall commence as from this date and shall be completed within ten days.

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Part I: Constitutional Issues 3. The Assembly of the Republic shall meet without summons on the first working day of the month of October every year and shall continue its ordinary functions until the end of the month of June. 4. The Assembly of the Republic shall carry out its functions in accordance, with standing orders made by it. The standing orders shall be so made as to enable the participation of the political party groups in all the activities of the Assembly of the Republic in proportion to the number of members in the group. The political party groups shall consist of at least five members. 5. The quorum for meetings of the Assembly of the Republic shall consist of the absolute majority of the total number of its members and decisions shall, unless there is provision to the contrary in the constitution, be taken by the absolute majority votes of the members present at the meeting. In case of equality of the positive and negative votes, the subject matter of the voting shall be considered as rejected: Provided that abstentions from voting shall be deemed to denote the acceptance in advance of a decision in favour of the positive negative votes whichever is the greater. 6. The Assembly of the Republic may be summoned to an extraordinary meeting on the request of the President of the Republic, the President of the Assembly of the Republic, the Council of Ministers or on the request of at least ten deputies. 7. The debates in the General Meetings of the Assembly of the Republic shall be public and verbatim reports thereof shall be published in full in the bulletin of minutes of the Assembly. 8. The Assembly of the Republic may hold closed sessions by a decision of the General Meeting of the Assembly. The publication of the verbatim reports of such debates shall be subject to the decision of the General Meeting of the Assembly of the Republic. 9. The publication by any means whatsoever of the public debates held in the Assembly of the Republic shall be free of any restrictions unless a decision to the contrary is taken upon the proposal of the Presidential Council of the Assembly at the same session. Presidential Council of the Assembly of the Republic: Article 83 1. The Presidential Council of the Assembly of the Republic shall be composed of the President of the Assembly of the Republic, Vice-President of the Assembly of the Republic and of a sufficient number of Clerks and Administrative Officers elected from amongst the deputies. 2. The Presidential Council of the Assembly of the Republic shall function as a Council and shall be constituted proportionately with the number of members of the groups in the Assembly. 3. The election of the President and Vice-President of the Assembly shall be

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In Search of a Solution held twice during the term of Office of the Assembly. Those elected for the first period shall hold Office for three years and those elected for the second period shall hold office for two years. The elections for the President and Vice-President of the Assembly for the second period shall commence on the first day of the fourth year of the term of office of the Assembly and shall be completed in ten days, at the latest. The duties of the former President and Vice-President of the Assembly shall continue until the new President and Vice-President for the second period shall be elected. 4. The election of the President and Vice-President of the Assembly shall be by secret ballot. At the first four rounds of voting an absolute majority of the total number of members shall be required. If an absolute majority of the total number of members cannot be had at the fourth round, a fifth round of voting shall be held between the two candidates receiving the greater number of votes at the fourth round of voting and the one receiving the highest votes at the fifth round shall be elected. 5. The provisions relating to the number, term of office and election of the Clerks and Administrative Officers shall be prescribed by the Standing Orders of the Assembly of the Republic. Immunity of Deputies: Article 84 1. Deputies shall not be held responsible for their votes or statements at the meetings of the Assembly of the Republic and for repeating or disclosing these outside the Assembly. 2. Where it is alleged that a deputy committed an offence before or after the elections, he cannot be arrested or prosecuted without the leave of the Assembly. Such leave shall not be necessary in the case of a deputy caught in the very act of commiting an offence, punishable with death or imprisonment for five years or more: provided that the competent person shall notify forthwith the Assembly. 3. A sentence imposed on a deputy before or after the elections, shall not be carried out until after the end of his term of office. The period during which a deputy remains in office shall not be reckoned for purposes of limitation of time. Holding of New Elections for the Assembly of the Republic: Article 88 1. The Assembly of the Republic may decide on its dissolution and holding of new general elections by an absolute majority vote of the total number of its members. Abstentions and null and void votes shall be taken into account only for purposes of the quorum of a meeting; they shall not be take into consideration for purposes of reckoning the votes required for the taking of a decision.

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Part I: Constitutional Issues 2. If it is not possible to appoint a Council of Ministers having the support of the majority of the Assembly of the Republic in conformity with paragraph (2) of Article 106 of this Constitution within a period of sixty days, the President of the, Republic may decide to dissolve the Assembly and hold new elections for the Assembly. 3. If the Council of Ministers falls or is forced to fall three times within a year for failing to receive a vote of confidence or as a result of a vote of no confidence, under Article 109 of this Constitution, the President of the Republic may decide to hold new elections for the Assembly. 4. The President of the Republic may, if he considers it necessary, have recourse to a referendum before deciding to hold new elections for the Assembly under paragraphs (2)and (3) of this Article. 5. The President of the Republic, when deciding to hold new elections or to have recourse to a referendum, shall obtain the views of the President of the Assembly of the Republic, the Council of Ministers and of the Chairmen of political parties having a group in the Assembly of the Republic. Chapter II: Enactment of Laws General Provisions relating to the Enactment of Laws and taking of Decisions: Article 89 1. The Council of Ministers and the deputies shall be entitled to introduce bills and resolutions. 2. The method and principles governing the debate in the Assembly of the Republic of bills and draft resolutions shall be regulated by Standing Orders. 3. The manner in which bills and draft resolutions shall be brought to the notice of the public shall be regulated by Standing Orders. The Ratification of International Agreements: Article 90 1. The ratification of agreements to be entered into on behalf of the Turkish Republic of Northern Cyprus with foreign States or international organisations shall be subject to the approval of the Assembly of the Republic through the enactment of a law. 2. Treaties regulating economic, commercial and technical relations, the duration of which does not exceed one year, may be put into effect through publication, provided that such treaties do not impose any burden on the State finances and do not affect the personal status and the citizen’s right of ownership in foreign countries. In such cases, the treaties shall be brought to the knowledge of the Assembly of the Republic within one month of their publication. 3. It shall not be necessary for treaties of application based on an international treaty and for economic, commercial, technical or administrative treaties made pursuant to powers given by law, to be ratified by the

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In Search of a Solution Assembly of the Republic; but such economic and commercial treaties so made and treaties affecting personal rights shall not come into force before publication. 4. The provisions of paragraph (1) of this Article shall be applied in the case of all treaties which bring a change in the laws of the Turkish Republic of Northern Cyprus. 5. International treaties which have been duly put into operation shall have the force of law. Recourse cannot be had to the Supreme Court sitting as the Constitutional Court in respect of such treaties on the grounds of unconstitutionality. Declaration of State of War and permission to use the Armed Forces: Article 91 1. The power to permit declaration of a state of war in circumstances considered legitimate by international law and the sending of the armed forces to foreign countries or bringing the armed forces of foreign countries to the Turkish Republic of Northern Cyprus in circumstances other than those necessitated by international treaties to which the Turkish Republic of Northern Cyprus is a party or by the rules of etiquette is vested in the Assembly of the Republic. 2. In cases where the country faces a sudden armed attack and due to the impossibility of summoning a meeting of the Assembly of the Republic it becomes unavoidable that immediate decision should be taken on the use of armed force, the President of the Republic, too, shall have power to decide at the time of the attack on the use of armed force. The President of the Republic shall immediately bring his decision to the knowledge of the Assembly of the Republic. The Assembly of the Republic shall convene a meeting at the first opportunity and take the necessary decisions on the matter. The Preparation, Application, Debating and Acceptance of the Budget: Article 92 1. The expenditure of the State and of Public Corporate Bodies, other than the Public Utility Enterprises, shall be provided for by annual budgets. 2. The provisions governing the preparation and application of the budget shall be regulated by law. 3. No provisions other than those relating to the budget shall be included in the Budget Law. 4. The draft budget shall be submitted by the Council of Ministers to the Assembly of the Republic at least two months before the beginning of the financial year. 5. The Budget Committee shall complete its work on the budget within one month, at the latest. 6. The deputies cannot propose any increase of expenditure or any decrease

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Part I: Constitutional Issues in revenue, during the debate of the draft budget at the general meeting of the Assembly of the Republic. 7. The President of the Republic shall promulgate the Budget Law enacted by the Assembly of the Republic, by publishing it in the Official Gazette of the Republic within ten days. Final Accounts: Article 93 The bills for final accounts shall, unless a shorter period has been provided in the law, be submitted by the Council of Ministers to the Assembly of the Republic within one year from the end of the financial year to which they relate, at the latest. The Court of Audit shall submit its notification of general approval to the Assembly of the Republic within a period of six months, at the latest, from the date of the submission of the bill of final accounts to which it relates. Promulgation of Laws by the President of the Republic: Article 94 1. The President of the Republic shall promulgate the Laws enacted by the Assembly of the Republic by publishing them in the Official Gazette of the Republic within fifteen days. He shall return any law which he does not consider proper to promulgate, together with the reasons therefore, to the Assembly for reconsideration within the said period of fifteen days. 2. If the Assembly of the Republic approves the law returned, by an absolute majority of the total number of its members, either after amending it or as it is, the law shall be promulgated by the President of the Republic. Abstentions shall not be taken into account for purposes of reckoning the votes required for the taking of a decision. 3. The President of the Republic shall, at the request of the Council of Ministers, refer any law enacted by the Assembly of the Republic to a referendum within the period prescribed for promulgation. The laws approved by referendum shall be promulgated by publishing them in the Official Gazette within ten days of their such acceptance. 4. The President of the Republic may exercise the authority vested in him under Article 146 within the period of fifteen days. In such a case the provisions of Article 146 shall be applied. The Publication of Decisions: Article 95 1. The decisions to be taken by the Assembly of the Republic on the following matters shall, unless there is provision to the contrary in the decision, come into operation immediately and shall be published by the President of the Assembly in the Official Gazette within ten days:

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In Search of a Solution (a) Decisions relating to declaration of war; (b) Decisions relating to the control of the Council of Ministers and Ministers and to votes of confidence and to votes of no confidence; (c) Decisions relating to the holding of new elections and to the postponement of elections; (d) Decisions relating to the termination of the Office of a deputy; (e) Decisions relating to the removal of the immunity of a deputy; (f) Results of elections held for internal matters of the Assembly; (g) Decisions to prefer charges against the President of the Republic, the Prime Minister and the Ministers before the Council of State (Yüce Divan); (h) Decisions relating to the control of public utility enterprises; (i) Decisions relating to a state of emergency and martial law; (j) Decisions relating to the approval of development plans. 2. Decisions of a general nature of the Assembly of the Republic which do not come under paragraph (1) of this Article shall be dealt with in accordance with the provisions governing the promulgation of laws. 3. Decisions relating to the application of the Standing Orders of the Assembly of the Republic and to the Assembly’s internal organization and activities which the Assembly decides should be published, shall be published by the President of the Assembly in accordance with paragraph (1) above. 4. No recourse shall be had to the Courts and no annulment suit shall be instituted before the Constitutional Court in respect of decisions other than those referred to under sub-paragraphs (d), (e) and (i) of paragraph (1) above. Chapter III: Methods of Obtaining Information and Exercising Control by the Assembly of the Republic Tabling of Questions and holding of a General Debate: Article 97 1. Tabling of a question means asking information on a specific subject from the Prime Minister or Ministers which shall be furnished orally or in writing on behalf of the Council of Ministers. The Prime Minister or Ministers shall furnish a reply to the question tabled within thirty days, at the latest. 2. General debate means a debate held on a specific subject upon the proposal of a deputy and its acceptance by the Assembly of the Republic. No voting is taken at the end of a general debate. Enquiry or Investigation: Article 98

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Part I: Constitutional Issues 1. An Assembly enquiry is an examination carried out for the purpose of obtaining information on a specific subject. 2. (a) Requests for an investigation involving the Prime Minister or Ministers shall be signed by at least nine deputies. (b) Requests for an investigation shall be debated and decided upon at the Assembly of the Republic. (c) Investigations shall be conducted by a special committee consisting of deputies. (d) The Assembly of the Republic may, after debating the report of the Committee of Investigation, accuse the Prime Minister or the Ministers by a decision to be taken by at least two-thirds of the total number of members. (e) The Prime Minister and Ministers shall be tried by the Council of State (Yüce Divan). (f) No discussions shall be held or decisions taken at political party groups in the Assembly in connection with Assembly investigations. 3. The Committees of Enquiry and investigation of the Assembly of the Republic shall have authority to examine any document relating to the enquiry or investigation, to obtain information and to call and examine witnesses. The sanctions to be applied against persons who shall refuse to furnish the information and documents required by the Committees of Enquiry and Investigation or to obey the calls made by these Committees and other relevant principles shall be regulated by law. Chapter I: President of the Republic President of the Republic: Article 99 1. The President of the Republic shall be elected for a period of five years. The candidates for the office of the President of the Republic must pass the following qualifications: (a) (b) (c) (d)

they must be qualified for election as a deputy; they must have had higher education; they must have completed the age of thirty five years; they must have been born of a Turkish father and mother and must be a citizen of the Turkish Republic of Northern Cyprus: and (e) they must have been ordinarily resident in Cyprus for a minimum period of five years immediately preceding the election. 2. A candidate in order to be elected as President of the Republic must obtain the absolute majority of the total number of valid votes cast. If no candidate thus obtains the absolute majority, the election shall be repeated after seven days between the two candidates who obtained the

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In Search of a Solution greater number of valid votes cast and the candidate who gets at such repeated election the highest number of valid votes cast shall be elected as President of the Republic. 3. The President of the Republic cannot do any work other than his official duties. He cannot undertake, directly or indirectly, any business engagements of the State or of public bodies. 4. The salary, representation and cost of living allowances and travelling expenses of the President of the Republic shall be regulated by law. The taking of Oath by the President of the Republic: Article 100 The President of the Republic shall take the following oath on his investiture: I do swear upon my honour and dignity that I shall preserve the existence and independence of the State, the indivisibility of the homeland and its people and the unconditional sovereignty of the people; that I shall be bound by the principle of the supremacy of law and by the principles of a democratic, secular and social State under the rule of law and the principles of Atatürk; that I shall work for the welfare and happiness of my people; that I shall not depart from the ideal that every citizen must benefit from human rights and fundamental rights and liberties and that I shall remain loyal to the Constitution and laws; and that I shall do all in my power to exalt the Turkish Republic of Northern Cyprus and to perform impartially the duties I have undertaken. The Relations of the President of the Republic with his Political Party: Article 101 In the event of the President of the Republic being a member of a political party he shall not be bound by the decisions of his party and he shall act independently. A person cannot at the same time be the President of the Republic and the Chairman of a Party. The Duties and Powers of the President of the Republic: Article 102 1. The President of the Republic shall be the Head of the State. In this capacity he shall represent the unity and integrity of the State and the community. 2. The President of the Republic shall ensure respect for the Constitution of the Republic, the carrying out of public affairs in an uninterrupted and orderly manner and the continuity of the State. 3. The President of the Republic shall represent, on behalf of the Assembly of the Republic, the office of the Commander-in-Chief of the Armed Forces of the Republic.

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Part I: Constitutional Issues 4. The President of the Republic shall exercise any other powers and perform impartially any other duties entrusted to him by this Constitution and laws. Immunity and Liability of the President of the Republic: Article l03 1. The President of the Republic shall not be responsible for acts committed in the execution of his duties. The Prime Minister and the Minister concerned, whose signatures appear thereon, shall be responsible for appointment orders jointly signed together with the President of the Republic. 2. The Assembly of the Republic may accuse the President of the Republic of high treason by a decision taken by at least a two-third majority of the total number of its members. 3. The President of the Republic shall be tried before the Council of State (Yüce Divan). If the Council of State considers the accusation justified, the term of office of the President shall be terminated, if he is not found guilty he shall resume his duties as President of the Republic. 4. Upon the decision of the Assembly of the Republic to level such an accusation, the President of the Republic cannot continue his duties. In such cases, the provisions of Article 105 of this Constitution shall be applied. 5. The formal personality of the Office of the President cannot be insulted. Chapter II: Council of Minister The Constitution of the Council of Ministers: Article 106 1. The Council of Ministers of the Turkish Republic of Northern Cyprus shall be composed of the Prime Minister and the Ministers. The Prime Minister shall be appointed by the President of the Republic from amongst the deputies in accordance with the provisions of this Article. 2. The President of the Republic shall entrust the duty of the formation of the Council of Ministers to the President of a group or to a deputy who is likely to obtain a vote of confidence. Every deputy who is given a mandate to form the Council of Ministers shall be bound to complete the mandate or return it within fifteen days at the latest. 3. The President of the Republic shall appoint the Prime Minister and on the proposal of the Prime Minister, the Ministers in accordance with the provisions of paragraph (2) above. The President shall terminate the appointment of any Minister at the request of the Prime Minister. 4. The Ministers may be appointed from amongst persons who are not deputies; provided that such persons shall possess the qualifications required of a Person to be elected as a deputy.

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In Search of a Solution 5. The Prime Minister and the deputies who have been appointed as Ministers shall not lose their membership of the Assembly of the Republic. The Ministers appointed to the Council of Ministers from outside the Assembly shall benefit from immunity in the same way as deputies but shall not vote in the Assembly of the Republic. 6. The existing Council of Ministers shall continue in office until the new Council of Ministers is appointed by the President of the Republic. The Duties, Powers and Responsibilities of the Prime Minister: Article 107 1. The Prime Minister shall ensure interministerial co-operation, the application of the general policy of the Council of Ministers and the application of laws. 2. The Prime Minister shall be responsible for ensuring that the Ministers perform their duties in accordance with the Constitution and laws, for securing the orderly functioning and discipline of the Council of Ministers and for taking the necessary corrective measures. 3. The Prime Minister shall be responsible to the Assembly of the Republic for the programme of the Council of Ministers and for its application or for any important political move. 4. The Prime Minister shall preside over the Council of Ministers. The President of the Republic may preside over the Council of Ministers in cases where he considers it necessary or at the request of the Prime Minister. The President of the Republic shall not have the right to vote. 5. The Prime Minister cannot do any work other than his official duties. He cannot undertake, directly or indirectly, any business engagement of the State and of public bodies. The salary, representation and cost of living allowances and the travelling expenses of the Prime Minister shall be regulated by law. 6. The Prime Minister shall exercise any other powers and perform any other duties conferred on him by the Constitution and laws. The Establishment of the Ministries: Article 108 1. The Ministries shall be established and abolished in accordance with the number and principles provided by the Constitution, on the proposal of the Prime Minister and approval of the President of the Republic, by an order published in the Official Gazette. Provided that such order shall come into operation only if the Prime Minister concerned receives a vote of confidence. 2. The number of ministries shall in no case exceed ten. The central organisation of each Ministry and which departments and services shall be attached to it shall be regulated by regulations to be made in accordance with the principles laid down by law.

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Part I: Constitutional Issues 3. In Ministries where the office of the Minister is vacant or where a Minister is on leave or temporarily incapacitated to perform the duties of his office, another Minister may act for him temporarily. Provided that a Minister shall not act for more than one Minister. 4. A Minister against whom a charge is preferred before the Council of State (Yüce Divan) by a decision of the Assembly of the Republic, shall forfeit the office of Minister. In the event of the Prime Minister being so charged before the Council of State (Yüce Divan), the Council of Ministers shall be deemed to have resigned. 5. In the event of a vacancy occurring in the office of Minister for any reason, such vacancy shall be filled within ten days, at the latest. The Assumption of Duty by the Council of Ministers and its Responsibilities: Article 109 1. The complete list of the Council of Ministers appointed by the President of the Republic shall be submitted to the Assembly of the Republic. If the Assembly of the Republic is in recess, it shall be convened immediately. The programme of the Council of Ministers shall be read by the Prime Minister or by a Minister within a week of its appointment at the latest. 2. After the programme is read before the Assembly of the Republic, recourse shall be had to a vote of confidence. The debate on the vote of confidence shall begin after the lapse of two full days from the reading of the programme and the vote of confidence shall be held after the lapse of one full day from the end of such debate. No motion for a vote of no confidence shall be tabled against a Council of Ministers, which has obtained a vote of confidence, before the lapse of three months from the date of the vote of confidence. 3. A motion for a vote of no confidence against the Prime Minister may be tabled by at least nine deputies. Another motion of no confidence cannot be made before the lapse of three months from the date of the refusal of the previous motion of no confidence. The decision whether a motion of no confidence shall be included on the agenda or not, shall be taken at the second meeting following its submission. A vote of no confidence cannot be taken before the lapse of one full day after the close of the general debate on the motion of no confidence. 4. The Prime Minister may, if he considers it necessary, ask for a vote of confidence from the Assembly of the Republic, at any time, after discussing the matter at the Council of Ministers. The request for a vote of confidence cannot be debated until after the lapse of one full day from the making of the request to the Assembly of the Republic and the requests cannot be put to vote until after the lapse of one full day from the end of the debate. The vote of confidence sought in this manner can be rejected only by an absolute majority of the total number of the members of the Assembly of the Republic. 226

In Search of a Solution 5. In the event of the majority of the members of the Council of Ministers being replaced within a period of thirty days, the Prime Minister shall ask for a vote of confidence. 6. The Prime Minister who fails to obtain a vote of confidence, or whose request for a vote of confidence shall be rejected or a motion for a vote of no confidence against him is carried by an absolute majority of the total number of members of the Assembly of the Republic, shall submit his resignation to the President of the Republic. The Duties, Powers and Responsibilities of the Ministers: Article 110 1. Each Minister, apart from being responsible to the Prime Minister shall also be responsible for matters coming under his authority and for the actions of those working under him. 2. Each Minister shall be the chief hierarchic officer of his Ministry’s central organisation and of the Departments and service units attached to his Ministry. 3. The executive duties of each Minister shall include the following: (a) to apply the laws concerning his Ministry and to administer all matters and affairs which normally come within the authority of his Ministry; (b) to prepare the orders, rules and regulations concerning his Ministry for submission to the Prime Minister and the Council of Ministers; (c) to publish directions; circulars and similar texts for the application of any law concerning his Ministry and of any rules and regulations issued thereunder; (d) to prepare that part of the Republic’s budget which concerns his Ministry for submission to the Council of Ministers and to apply such budget. 4. The Ministers cannot engage in any work other than their official duties. They cannot undertake, directly or indirectly, any business engagement of the State and of public bodies. The salaries the representation and cost of living allowances and the travelling expenses of the Ministers shall be regulated by law. 5. The Ministers shall exercise any other powers and shall perform any other duties conferred on them by the legislation in force, by the Prime Minister and by the Council of Ministers. The Republic’s Security Council: Article 111 1. The Republic’s Security Council shall be composed of the President of the Assembly, the Prime Minister, the Ministers of Interior, Foreign Affairs and Defence, the Commander of the Armed Forces and the Commander of Police, under the Chairmanship of the President of the Republic.

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Part I: Constitutional Issues Other interested Ministers and persons may be invited and their views obtained, at the request of the Prime Minister, according to the nature of the agenda. Secretarial work of the Security Council shall be carried out by the Office of the Prime Minister. 2. The Republic’s Security Council shall furnish its views to the Council of Ministers on the taking of the decisions relating to the determination and implementation of the State’s and country’s security policy and on securing the necessary co-ordination. Decisions relating to measures considered necessary by the Security Council for the protection of the existence and independence of the State, of territorial integrity and indivisibility of the country and of the peace and security of the community shall receive priority consideration by the Council of Ministers. Orders Having the Force of Law: Article 112 1. The Council of Ministers may, in cases of urgency issue orders having the force of law in economic matters. An order having the force of law shall come into force on its publication in the Official Gazette and it shall be submitted to the Assembly of the Republic, together with its objects and reasons, on the same day. 2. Orders having the force of law submitted to the Assembly of the Republic shall be debated and decided upon in the Committees and the General Assembly with priority and urgency before any other matter, in accordance with the provisions of the standing orders relating to the debate of Laws. 3. The Assembly shall give its decision on these matters within ninety days. 4. New economic burdens cannot be imposed and personal and political rights and liberties cannot be restricted by means of orders envisaged by this Article. Chapter III: The Administrative Provisions PART IV – ORGANIZATIONS Professional Organizations in the Nature of Public Authorities: Article 129 1. The establishment and administration of broadcasting and television established by law and their organs shall be elected by them and from amongst their members. 2. The elected organs of these organizations shall not be removed, either permanently or temporarily, from office without a court order. 3. The rules and the administration and functions of professional organizations shall not be contrary to democratic principles. Broadcasting, Television and News Agencies: Article 130 228

In Search of a Solution 1. The establishment and administration of broadcasting and television stations shall be regulated by law. 2. All radio and television broadcasts shall be made in accordance with the principles of impartiality. 3. The principles of compliance with the requirements of a democratic, secular and social State under the rule of law based on human rights and on the exigencies of national security and public morals, in the selection and transmission of news and programmes and in the carrying out of the duty for the furtherance of culture and education and in securing the correctness of news; and the election of the executive organs, their powers, duties and responsibilities shall be regulated by law. 4. News agencies established by the State or receiving financial assistance from the State shall comply with the above provisions. 5. The right of political parties to benefit from radio, television, news agencies and other similar State authorities shall be regulated by law. 6. Facilities for propaganda and election speeches over the radio and television by political parties, taking part in the elections or in a referendum, shall be regulated by law. Vakf Organization and the Office of Religious Affairs: Article 131 1. The institution of Vakf and the Fundamental Evcaf Rules (Ahkâmul Evkaf) are recognised by this Constitution. 2. All matters relating to or in any way affecting the institution or foundation of Vakf or any Vakf properties, including properties belonging to mosques and any other Moslem Religious institutions, shall be subject exclusively to the Fundamental Evcaf Rules (Ahkâmül Evkaf); the legislation in force and the laws to be enacted by the Assembly of the Republic after the coming into force of this Constitution. 3. Vakfs, the income of which belongs to the Evkaf Administration, shall be exempted from any form of taxation. 4. The establishment and functioning of the Vakfs Organisation and the Religious Affairs Office shall be regulated by law and they shall carry out the duties prescribed by law. 5. The State shall help the Evkaf in the execution of religious services and in meeting the expenses of such services. Chapter VI: Economic and Financial Provisions PART V – THE JUDICIARY Chapter I: General Provisions Independence of Courts: Article 136

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Part I: Constitutional Issues 1. Judges shall be independent in their duties and they shall judge in accordance with the Constitution, the laws, legal principles and the opinion dictated by their conscience. 2. No organ, office, authority or person can give orders or instructions, send circulars or make recommendations or suggestions to courts and judges in the exercise of their judicial powers. 3. No questions can be asked, no debate can be held and no statement can be made in the Assembly of the Republic relating to the exercise of judicial power in a case which is under trial. The Legislative and Executive organs and the administrative authorities of the State shall comply with Court decisions; such organs and authorities cannot in any way change court decisions or delay their execution. The Security of Tenure of Judges: Article 137 1. Judges cannot be dismissed; they cannot be retired before the age provided by the Constitution, unless they so desire, and they cannot be deprived of their acquired rights even in the event of the abolition of a court or a post. 2. The exceptions provided by law concerning judges who are convicted of an offence entailing dismissal from office; concerning judges whose incapability to discharge their duties for reasons of ill health has been definitely established; concerning judges who do work incompatible with their profession; and concerning judges who have been pronounced unsuitable to remain in their profession, shall be reserved. 3. No action shall be brought against judges in respect of words spoken or any act done in the execution of their judicial duties. The Profession of Judges: Article 138 1. The qualifications, appointments, rights and duties, salaries and allowances and promotions of judges, the temporary or permanent charge of their duties or of their places of duty, the commencement of disciplinary proceedings against them and the imposition of disciplinary penalties, decision to hold an enquiry and to institute legal proceedings against them for offences connected with their duties, instances of incapacity and conviction of an offence which entail dismissal from the profession and other personnel matters shall be regulated by law in accordance with the principle of the independence of courts. 2. The President and members of the Supreme Court shall hold office until they attain the age of sixty-five and other judges until they attain the age of sixty. 3. Judges shall not undertake any general or special duty other than the duties specified by law. They shall not do any work other than their

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In Search of a Solution official duties and they shall not undertake, directly or indirectly, any business engagement of the State or public bodies. Hearings to be Public and Judgments to contain Reasons: Article 139 1. Subject to the provisions of Article 17 (3) of this Constitution sittings of the courts shall be public. 2. All kinds of judgments given by all courts shall be reasoned judgments in writing. Trial of Juveniles: Article 140 Special provisions may be made by law on matters relating to the trial of juveniles and to the execution of judgments concerning juveniles. Supreme Council of Judicature: Article 141 1. The Supreme Council of Judicature shall consist of the following members: (a) (b) (c) (d) (e)

President and Judges of the Supreme Court; One member to be appointed by the President of the Republic; One member to be appointed by the Assembly of the Republic; The Attorney-General of the Republic; One member to be elected by the Bar Association.

The term of office of the members mentioned in paragraph (b), (c) and (e) above shall be for three years; any member whose term of office ends may be re-elected as a member. 2. The President of the Supreme Court shall be the chairman of the Supreme Council of Judicature; he shall ensure the implementation of the decisions of the Council of Judicature. 3. The Supreme Council of Judicature shall assume the general functioning and (a) take the necessary measures for the general functioning and orderly working of the judiciary, for the regular attendance to their duties of the judges and of the public servants working in the Courts, for the running of the affairs in a proficient manner and for the training of the judges and the safeguarding by them of the dignity and honour of the profession; and (b) at the end of each financial year submit a report to the President of the Republic, the Assembly of the Republic and the Council of Ministers on the situation of judicial affairs and the defects in running them and the

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Part I: Constitutional Issues reasons, if any, of such defects and advise on measures which it considers necessary to remedy them. 4. Subject to the provisions of Article 138 of this Constitution, the Supreme Council of Judicature shall: be competent to determine all matters relating to the appointment, promotion, the temporary or permanent change of the duties or place of appointment, the termination of appointment and discipline of judges. 5. The duties, powers and working procedure of the Supreme Council of Judicature shall be regulated by law. 6. The appointment of the President and judges of the Supreme Court shall be approved by the President of the Republic. Punishment of Persons not Complying with Court Decisions or Orders: Article 142 The Supreme Court or any other court shall have power to punish a person who does not obey any of its decisions or orders with imprisonment until he complies with such decision or order but the period of such imprisonment shall not in any case exceed the period of one year. Chapter II: Supreme Court The Constitution of the Supreme Court and Allocation of Duties: Article 143 1. The Supreme Court of the Turkish Republic of Northern Cyprus shall be composed of a President and seven judges. In the absence of the President the most senior judge shall act in his place. 2. The Supreme Court shall carry out the duties of the Constitutional Court, the Council of State (Yüce Divan), the Court of Appeal and the High Administrative Court. 3. The Supreme Court shall have jurisdiction to act as the Constitutional Court with the President and for members attending the sitting. The two last appointed judges of the Supreme Court shall act as the reserve judges. In case the President is not present at the sitting, the most senior judge shall preside. Where a case is referred to the Constitutional Court under Article 148 of this Constitution, a judge or judges who took part in the decision to refer, shall not sit at the trial of the case referred or take part in the judgment to be given there. 4. The Supreme Court sitting with the President and two judges or just three judges shall have jurisdiction to act as the Court of Appeal or as the High Administrative Court. The judgments given within the framework of such jurisdiction shall be final. In cases where the President is not present at the sitting the most senior judge shall preside. Provided that recourses made directly to the Supreme Court, acting as High Admin-

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In Search of a Solution istrative Court, other than those recourses specified by law, shall be examined and determined by a single judge nominated for such duty at the High Administrative Court. Judgments given by a single judge are liable to appeal to the High Administrative Court consisting of three judges. 5. Judges of the Supreme Court who shall perform duties at the Court of Appeal or the High Administrative Court, shall, before the beginning of each judicial year, be nominated for that judicial year by the Supreme Court and that judge shall perform duty at the Court of Appeal or the High Administrative Court for one judicial year. Provided that where any of the judges nominated for duty for a year at the Court of Appeal or the High Administrative Court shall become temporarily incapacitated to perform his duties, another judge to be nominated by the President of the Supreme Court may perform such duties. PART VI – DUTIES AND POWERS OF THE CONSTITUTIONAL COURT Powers of the Constitutional Court: Article 144 1. The Supreme Court shall have exclusive jurisdiction to adjudicate finally on all matters prescribed by the provisions of this Constitution, the laws and the Rules of Court. 2. The Constitutional Court, sitting as the Council of State (Yüce Divan), shall within the framework of legislation in force have jurisdiction to try the President of the Republic, the Prime Minister and the Ministers, for any offence committed by them. The duties of the Prosecuting Officer at the Council of State (Yüce Divan) shall be performed by the AttorneyGeneral or the Deputy Attorney-General. The judgments of the Council of State (Yüce Divan) shall be final. Conflict of Power Between Organs: Article 145 1. The Constitutional Court shall have jurisdiction to adjudicate finally on a recourse made in connection with any matter relating to any conflict or contest of power or competence arising between State organs. 2. Where in any matter a question arises which falls within the jurisdiction of the Constitutional Court, such question shall be determined finally by the Constitutional Court. 3. In accordance with paragraph (1) of this Article: (a) the President of the Republic; or (b) the Assembly of the Republic; or (c) any other organ of the State, may have recourse to the Constitutional Court, if involved in such conflict or contest of power.

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Part I: Constitutional Issues 4. Such recourse shall be made within thirty days of the date when such power or competence is contested. 5. Upon such a recourse the Constitutional Court may declare that the law or the decision or the act which is the subject matter of the recourse is void, either from the time when the conflict or contest arose or ab initio and without any legal effect whatsoever, either in whole or in part, on the ground that such law or decision or act was made or taken or done without power or competence and in either case the Constitutional Court may give directions as to the effect of anything done or left undone under such law, decision or act. 6. Any decision of the Constitutional Court upon such recourse, shall forthwith be notified in writing to the parties concerned and to the President of the Republic who shall cause its publication in the Official Gazette. 7. Upon a recourse under this Article the Constitutional Court may order that the operation of the law or decision or act, which is the subject matter of such recourse, shall be suspended until the determination of the recourse; such order shall be published forthwith in the Official Gazette. Unconstitutionality of Laws: Article 146 1. The President of the Republic may, at any time prior to the promulgation of any law or of any specified provision thereof or of any decision of the Assembly of the Republic, refer it to the Constitutional Court for its opinion as to whether such law or any specified provision thereof or decision is repugnant to or inconsistent with any provision of the Constitution. 2. The Constitutional Court shall consider every question referred to it under paragraph (1) of this Article and having heard the arguments made on behalf of the President of the Republic and of the Assembly of the Republic shall give its opinion on such question within forty five days at the latest and notify the President of the Republic in writing accordingly. 3. In case the Constitutional Court is of the opinion that such law or decision or any provision thereof is repugnant to or inconsistent with any provision of this Constitution, such law or decision or provision shall not be promulgated by the President of the Republic but it shall be returned to the Assembly of the Republic together with reasons therefor. 4. The provisions of Article 94 relating to the return of laws or decisions or provisions thereof to the Assembly shall not apply to any law, decision or provision so returned. Annulment Suits: Article 147 1. The President of the Republic, political parties represented in the

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In Search of a Solution Assembly of the Republic, political groups and at least nine deputies or other associations, institutions or trade unions on matters concerning their existence and duties, may directly initiate an annulment suit at the Constitutional Court on the ground that a law, order, rules, Standing Orders of the Assembly of the Republic, decision of the Assembly of the Republic and its regulations, or any of the provisions thereof, is repugnant to or inconsistent with any provision of the Constitution. 2. The right to institute an annulment suit directly in the Constitutional Court, shall lapse after ninety days from the date of the publication in the Official Gazette of the law, order, rules, standing orders of the Assembly of the Republic, decision of the Assembly of the Republic and its regulations, or any of the provisions thereof, the annulment of which is desired. Reference of Questions of Unconstitutionality by Courts to the Supreme Court: Article 148 1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof which is material for the determination of any matter at issue in such proceedings and thereupon the Court shall reserve the question for the decision of the Constitutional Court, and stay further proceedings until such question is determined by the Constitutional Court. Provided that where a decision has been previously given by the Constitutional Court on the same or similar question regarding the unconstitutionality of any law or decision or any provision thereof the Court may refuse to reserve the question for the decision of the Constitutional Court. 2. The Constitutional Court shall, after hearing the parties, consider and determine the question so reserved for its decision and transmit its decision thereon to the Court by which such question has been reserved. 3. Any decision of the Constitutional Court under paragraph (2) of this Article shall be binding on the Court by which the question has been reserved and on the parties to the proceedings. In case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, such decision shall not, unless the Constitutional Court decides to the contrary, so operate as to make such law or decision or any provision thereof applicable to such proceedings only. The Interpretation of the Constitution: Article 149 The Constitutional Court shall have exclusive jurisdiction to interpret any provision of this Constitution. In the exercise of this jurisdiction it may avail itself of the committee reports concerning the Constitution and of the minutes of the Assembly.

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Part I: Constitutional Issues Decisions of the Constitutional Court: Article 150 1. The decisions of the Constitutional Court shall be final. Such decisions shall not be pronounced unless the reasons therefor are expressed in writing. 2. Any law, order, rules, Standing Orders of the Assembly of the Republic, decision of the Assembly of the Republic, internal regulations or any provisions thereof, the annulment of which has been decided upon by the Constitutional Court, for being inconsistent with the Constitution, shall be null and void as from the date of publication in the Official Gazette of the reasoned judgment. 3. Where necessary, the Constitutional Court may also decide on the date when the annulment decision shall come into force. This data shall be a date within the period of one year from the date of publication of the judgment in the Official Gazette. 4. The annulment decision shall not be retrospective. PART VII – DUTIES AND POWERS OF THE SUPREME COURT SITTING AS THE COURT OF APPEAL The powers of the Court of Appeal: Article 151 1. The Court of Appeal shall be the highest appellate court in the State; it shall have jurisdiction to hear and determine, subject to the provisions of this Constitution and of any laws and Rules of Court made thereunder, all appeals from a decision of any court. 2. Subject to paragraph (3) of this Article the Court of Appeal, shall have such original and revisional jurisdiction as is provided by this Constitution or any law. Provided that where original jurisdiction is so conferred, such jurisdiction shall be exercised by such judge or judges as the Supreme Court shall determine. There shall be a right of appeal to the Court of Appeal against decisions so given. 3. The Supreme Court, sitting as the Court of Appeal shall have exclusive jurisdiction to issue orders in the nature of ‘habeas corpus’ to effect release from unlawful detention; ‘mandamus’ to secure the exercise of powers; ‘prohibition’ to prohibit the effects of a wrong decision of any Court or of any authority exercising power of a judicial nature; ‘quo warranto’ to inquire as to upon what authority an office is being held; and ‘certiorari’ to quash a decision of any court or an authority exercising quasi-judicial powers. Chapter V: Duties and Powers of the Supreme Court Sitting as the High Administrative Court The Powers of the High Administrative Court:

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In Search of a Solution Article 152 1. The High Administrative Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to any of the provisions of this Constitution, or of any law or of any subsidiary legislation made thereunder, or is made in excess or in abuse of powers vested in such organ or authority or person. 2. Such a recourse may be made by a person whose legitimate interest is adversely and directly affected by such decision or act or omission. 3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published or in the case of an omission, when it came to the knowledge of the person making the recourse. 4. Upon such a recourse the High Administrative Court may, by its decision: (a) confirm either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed. 5. Any decision given under paragraph (4) of this Article shall be binding on all courts and all organs or authorities in the State and shall be given effect to and acted upon by the organ or authority or persons concerned. 6. Any person aggrieved by any decision or act declared to be void under paragraph (4) of this Article or by any omission declared thereunder; that it ought not have been made, shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceeding for damages or for being granted other remedy and to recover just and equitable compensation to be determined by the court or to be granted such other just and equitable compensation as such court is empowered to grant. Chapter VI: Other Duties and Powers of the Supreme Court Other Duties and Powers of the Supreme Court: Article 153 Subject to the provisions of this Constitution, the establishment, constitution, functions, duties and powers of the Supreme Court shall be regulated by law. Power to make Rules of Court: Article 154 1. The Supreme Court shall make Rules of Court under the provisions of

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Part I: Constitutional Issues this Constitution and of the laws, for regulating the practice and procedure of itself and of any other Court. 2. Without prejudice to the generality of paragraph (1) of this Article the Supreme Court may make Rules of Court for the following purposes: (a) for regulating the court sittings and allocating duties to judges for any purpose; (b) for the determination by summary proceedings of any appeal or other proceedings which appear to the Supreme Court or such other court before which such proceedings are pending to be frivolous or vexatious or to have been instituted for the purpose of delaying the course of justice; (c) for prescribing forms and fees in respect of proceedings in the courts and regulating the cost of, and incidental to, any such proceedings; (d) for prescribing and regulating the composition of the registries of the courts and the powers and duties or the public servants working in the courts; (e) for prescribing the time within which any requirement of the Rules of Court is to be complied with. Chapter VII: Subordinate Courts Establishment, Duties and Powers of Subordinate Courts: Article 155 1. The judicial power other than that exercised by the Supreme Court under this Constitution and the laws shall be exercised by such subordinate courts and specialized courts as may, subject to the provisions of this Constitution, be provided by a law made thereunder. 2. The establishment, duties and powers, functions and rules of procedure of subordinate courts and specialized courts exercising judicial power shall be regulated by law. Chapter VIII: Military Judicial Power and Military Court of Appeal Military Judicial Power: Article 156 1. Judicial power relating to military matters shall be exercised by military courts and disciplinary tribunals. 2. Military courts shall have jurisdiction to try such military offences, as may be specified by a special law, committed by persons who are not members of the Armed Forces. Such courts shall also have jurisdiction to try offences committed by persons who are not members of the Armed Forces in the execution of the duties specified in such special law or offences committed by such persons against members of the Armed Forces in places belonging to the Armed Forces as may be specified in such law. 3. The specific offences and persons over which military courts shall have 238

In Search of a Solution jurisdiction in cases of war, martial law or state of emergency, shall be regulated by law. 4. The establishment, functions, procedure to be followed in trials, personnel matters of judges of military judical organs and the provisions relating to those performing the duties of a prosecuting officer at military courts shall be regulated by law in accordance with the independence of Courts, the security of tenure of judges and the exigencies of service of the Armed Forces. Military Court of Appeal: Article 157 1. The Military Court of Appeal is the Court of the last instance to review decisions and judgments given by military courts. 2. The establishment, functions, procedure to be followed in trials, disciplinary and personnel matters of its members, shall be regulated by law in accordance with the independence of Courts, the security of tenure of judges and the exigencies of service of the Armed Forces.

PART IX – THE ATTORNEY-GENERAL’S OFFICE The Attorney–General and Counsels of the State: Article 158 1. The Law Office of the Turkish Republic of Northern Cyprus shall be an independent office and its Head shall be the Attorney-General. The Deputy Attorney-General shall act for the Attorney-General in case of his absence. 2. The Attorney-General shall be appointed from amongst persons qualified for appointment as a judge of the Supreme Court and he shall be a permanent member of the judicial system of the Turkish Republic of Northern Cyprus. The Attorney-General shall hold office under the same terms and conditions as a judge of the Supreme Court and shall not be removed from office except on the like grounds and in the like manner as a judge of the Supreme Court. 3. The Attorney-General of the Turkish Republic of Northern Cyprus shall be the legal adviser of the State, of the President of the Republic, of the Prime Minister, of the Council of Ministers, of the Ministers and of other State organs. He shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this Constitution or by law. 4. (a) The Attorney-General shall have power in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence, in the courts of the Turkish Republic of Northern Cyprus. In Criminal courts the conduct of prosecutions and respon239

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5. 6.

7.

8.

sibility therefore shall vest in the Attorney-General. Such power shall be exercised by him in person or by the Deputy Attorney-General or by the Counsels of the State acting in accordance with his instructions. (b) The Attorney-General may, where he considers it necessary, by an order to be published in the Official Gazette, authorise a member of the police organisation, whom he considers suitable, to prosecute in courts, under his direction and responsibility, road traffic offences which can be settled without a trial under the law. (c) The Attorney-General may, where he considers it necessary, by a order to be published in the Official Gazette, authorise a lawyer appointed to a Ministry or other public institution and qualified to practise as an advocate, to conduct proceedings in Courts in which the Ministry or other public institution concerned is a party. The Attorney-General shall have power to represent the State or its organs in civil and constitutional proceedings in which the State is a party. The Attorney-General, the Deputy Attorney-General and the Counsels of the State shall have the right of audience before any court, and in the exercise of this right shall take precedence over any other person appearing before the court. The Attorney-General shall, at the end of each calendar year, submit a report to the President of the Republic, the Assembly of the Republic and the Council of Ministers on the defects seen in the general functions and in the execution of the duties of the Law Office and the reasons, if any, for such defects and submit his recommendations on the measures which he considers necessary to remedy them. Subject to the provisions of this Constitution, the establishment and functions of the Law Office of the Turkish Republic of Northern Cyprus, the qualifications and appointment of the Attorney-General, Deputy Attorney-General and Counsels of the State, their rights and duties, salaries and allowances, promotion, the taking of disciplinary action against, and the imposition of disciplinary penalties on them and their other personnel matters shall be regulated by law in accordance with the principles governing the independence of courts and the security of tenure of judges. PART X – MISCELLANEOUS PROVISIONS

Right of the State to Ownership: Article 159 1. (a) All immovable properties registered in the name of the Government of Cyprus before the 16th of August 1960 and all immovable properties transferred to the Government of Cyprus after the 16th of August 1960; roads, waters, water resources, ports, harbours and shores, docks and piers, lakes, riverbeds, and lakebeds, historical cities, buildings, remains

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In Search of a Solution and castles and the sites thereof, natural wealths and underground resources, forests, defence buildings and installations, green areas and parks belonging to the public; public village roads and pathways in the fields; and buildings used for public services; (b) All immovable properties, buildings and installations which were found abandoned on 13th February, 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the abovementioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined; and (c) all immovable properties found within the area of military installations, docks, camps and other training grounds specified in the 1960 Treaty of Establishment and its Annexes, situated within the boundaries of the Turkish Republic of Northern Cyprus on 15th November 1983, shall be the property of the Turkish Republic of Northern Cyprus notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office records shall be amended accordingly. 2. Notwithstanding any other provisions of this Constitution, the ownership of the immovable properties specified in sub-paragraphs (a) and (c) of paragraph (1) above shall not be transferred to real and legal persons. Provided that the making of the necessary adjustment by the State to public roads and to public village roads and field pathways is exempted from the above provision. Easements and other similar rights for specified periods and long-term leases over such immovable properties may be established and registered in the manner and under the conditions prescribed by law for purposes of public interest. The establishment and registration of such rights, the period of which exceeds fifty years, shall be subject to the approval of the Assembly of the Republic. 3. Out of the properties specified in subparagraph (b) of paragraph (1) above, the transfer of the right of ownership to real and legal persons of immovable properties other than forests, green areas, monuments and parking places, waters, underground waters, natural resources and buildings, installations and sites required for defence, public administration and military purposes and those required for purposes of town and country planning and soil conservation, shall be regulated by law. 4. In the event of any person coming forward and claiming legal rights in connection with the immovable properties included in subparagraphs (b) and (c) of paragraph (1) above, the necessary procedure and conditions to be complied with by such persons for proving their rights and the

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Part I: Constitutional Issues basis on which compensation shall be paid to them, shall be regulated by law. 5. Places of religious worship and the immovable properties in which they are situated shall not be transferred to real and legal persons. The State shall take the necessary measures for the safeguard, maintenance and preservation of such places and, properties. PART XI – TRANSITIONAL PROVISIONS Safeguarding of the Rights: Transitional Article 1 1. The necessary social, economic, financial and other measures, including compensation, for the protection of the citizens who have emigrated or sustained, directly or indirectly, any loss because of the national resistance of the Turkish Community or during such resistance, shall be regulated by law. 2. The right of the citizens of the Turkish Republic of Northern Cyprus to ask for immovable property of equal value, from the State, in return for their immovable properties left in Cyprus outside the boundaries of the State, shall be reserved; such right shall be regulated by law and the transfer of ownership of the immovable properties included in paragraph (2) of Article 159 of this Constitution to the persons entitled shall be effected with priority. Property shall also be granted to the martyrs and to disabled veterans and to those other persons entitled to the grant of property for other reasons specified in the law. 3. The State shall take the necessary social, economic, financial and other measures for the rehabilitation of the refugees under equal status and for rendering them useful to themselves, to their families and to the community; the State shall give the necessary assistance until such rehabilitation is realized. 4. The rights of the Turkish citizens of the Turkish Republic of Northern Cyprus to claim compensation for loss of income or damage sustained by them as a result of the movable and immovable properties which they were obliged to abandon, shall be reserved. Such rights shall be regulated by law. 5. Subject to compliance with the requirement for giving priority to the grant of immovable property of equal value, the transactions relating to the transfer of property rights with regard to immovable properties, to entitled persons, shall be completed within a period of five years, at the latest, as from the date of the coming into operation of this Constitution.

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In Search of a Solution PART XII – FINAL PROVISIONS Amendment of the Constitution: Article 162 1. The provisions of this Constitution may be amended, partially or wholly, only by a proposal made by at least ten members of the Assembly of the Republic and by the approval of the proposal by a two third majority of the total number of the members of the Assembly. The provisions of Article 9 of this Constitution are reserved. 2. The debating of the proposals made in connection with the amendment of the Constitution and the acceptance of such proposals shall, without prejudice to the conditions set out in paragraph (1), be subject to the provisions relating to the debate and acceptance of laws. Provided that amendment proposals shall not be debated before the lapse of thirty days as from the date of the submission of the proposal. 3. The amendments to the Constitution, if accepted by a referendum, shall come into force upon publication in the Official Gazette by the President of the Republic within ten days of such referendum.

27. De Cuéllar’s ideas (1986) Draft Framework Agreement on Cyprus, 29 March 1986 Recognising with satisfaction that the initiative of the Secretary-General, which bore in mind the relevant United Nations resolutions and which began in August 1984 in Vienna and continued through the high-level proximity talks from September to December 1984 and the joint high-level meeting of January 1985 held in New York, has now resulted in an important step towards a just and lasting settlement of the Cyprus problem. The parties agree on the following matters which are to be viewed as an integrated whole: 1.1 The Parties: (a) Recommit themselves to the high-level agreements of 1977 and 1979; (b) Indicate their determination to proceed, at the date referred to in paragraph 15.1 below, to the establishment of a Federal Republic that will be independent and non-aligned, bi-communal as regards the federal constitutional aspect and bi-zonal as regards the territorial aspect; (c) Reaffirm their acceptance of those introductory constitutional provisions that were agreed upon at the intercommunal talks in 1981–82; i

The Federal Republic of Cyprus shall have international personality. The 243

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ii

iii iv v

vi

vii

federal government shall exercise sovereignty in respect of all of the territory. The attributes of international personality shall be exercised by the federal government in accordance with the federal constitution. The provinces or federated states may act in their areas of competence in accordance with the federal constitution and in a manner that would not duplicate the powers and functions of the federal government as defined in the federal constitution. The people of the Federal Republic shall comprise the Greek Cypriot community and the Turkish Cypriot community. There shall be a single citizenship of the Federal Republic of Cyprus regulated by federal law. The territory of the Federal Republic shall comprise the two provinces or federated states. The official languages of the Federal Republic shall be Greek and Turkish. The English language may also be used. The Federal Republic shall have a neutral flag and anthem to be agreed. Each province or federated state may have its own flag using mainly elements of the federal flag. The federal flag shall be flown on federal buildings and federal locations to the exclusion of any other flag. The federal government shall observe the holidays of the Federal Republic. Each province or federated state shall observe the federal holidays as well as those established by it. The parties reaffirm all other points that were agreed upon during the course of the intercommunal talks as contained in the ‘revision’ dated 18 May 1982 concerning general provisions. Part I, fundamental rights and liberties. Part H, as well as Parts III and IV.

2.1 The powers and functions to be vested in the federal government of the Federal Republic shall comprise: (a) Foreign affairs. (b) Federal financial affairs (including federal budget, taxation, customs and excise duties). (c) Monetary and banking affairs. (d) Federal economic affairs (including trade and tourism). (e) Posts and telecommunications. (f) International transport. (g) Natural resources (including water supply, environment). (h) Federal health and veterinary affairs. (i) Standard setting: weights and measures, patents, trademarks, copyrights. (j) Federal judiciary. (k) Appointment of federal officers. (l) Defence (to be discussed also in connection with the treaties of guarantee and of alliance); security (as it pertains to federal responsibility). 2.2 Additional powers and functions may be vested in the federal govern-

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3.1

3.2

4.1

4.2

ment by common agreement of both sides. Accordingly, the residual powers shall rest with the provinces or federated states. Federal legislation may be executed either by authorities of the federal government or by way of coordination between the competent authorities of the federal government and of the two provinces or federated states. The legislature of the Federal Republic will be composed of two chambers: a lower chamber with a 70–30 Greek Cypriot and Turkish Cypriot representation, and an upper chamber with a 50–50 representation. Federal legislation will be enacted with regard to the matters of federal competence as referred to in paragraph 2.1 above. The adoption of legislation on major matters, as for instance on ten of the twelve functions referred to in paragraph 2.1 above, will require separate majorities in both chambers. The adoption of legislation on other matters will require majorities of the membership in each chamber. Appropriate constitutional safeguards and deadlock resolving machinery including special provisions to facilitate action on matters necessary for the continued functioning of the federal government (e.g. on budgetary questions) will be incorporated in the federal constitution. In case of deadlock in the legislature, the proposed legislation may be submitted in the first instance to a conciliation committee of the legislature composed of three Greek Cypriots and two Turkish Cypriots, whose decision will be taken on the basis of majority vote including at least one Turkish Cypriot. If the deadlock persists, the president and vice-president of the Federal Republic will, upon request, appoint on an ad hoc basis one person each, selected for their knowledge of the subject involved, who, with the assistance of experts as needed, including from outside the Federal Republic of Cyprus, will advise the legislature on ways the deadlock could be resolved. The matter may also be submitted to a referendum among the population of the community which opposed the draft legislation. Legislation adopted by the legislature may be taken to the Constitutional Court for ruling as to whether it violates the constitution or is discriminatory against either community. The Federal Republic will have a presidential system of government. The president and the vice-president will symbolise the unity of the country and the equal political status of the two communities. In addition, the executive will reflect the functional requirements of an effective federal government. The president will be a Greek Cypriot and the vice-president will be a Turkish Cypriot. The president and the vice-president will, separately or conjointly, have the right to veto any law or decision of the legislature and the Council of Ministers in areas to be agreed upon, it being understood that the scope will exceed that covered by the 1960 constitution. The president and the vice-president will have the right, separately or

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4.4

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7.1

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conjointly, to return any law or decision of the legislature or any decision of the Council of Ministers for reconsideration. The Council of Ministers will be composed of Greek Cypriot and Turkish Cypriot ministers on a 7 to 3 ratio. One major ministry will be headed by a Turkish Cypriot, it being understood that the parties agree to discuss that the Minister for Foreign Affairs will be a Turkish Cypriot. The Council of Ministers will take decisions by weighted voting, that is a simple majority including at least one Turkish Cypriot minister. It is understood that the parties agree to discuss that weighted voting will apply to all matters of special concern to the Turkish Cypriot community to be agreed upon. Appropriate constitutional safeguards and deadlock resolving machinery related to decisions by the Council of Ministers, including special provisions to facilitate action on matters necessary for the continued functioning of the federal government, will be incorporated in the federal constitution. In case of deadlock, the president and vice-president of the Federal Republic will, upon request, appoint on an ad hoc basis one person each, selected for their knowledge of the subject involved, who, with the assistance of experts as needed, including from outside the Federal Republic of Cyprus, will advise the Council of Ministers on ways the deadlock could be resolved. The matter may also be submitted to a referendum among the population of the community which opposed the draft decision. A decision by the Council of Ministers may be taken to the Constitutional Court for ruling as to whether it violates the constitution or is discriminatory against either community. The Constitutional Court, when ruling on disputes relating to the distribution of powers and functions between the federal government and the provinces or federated states and on such other matters as may be assigned to it by the parties in accordance with the federal constitution, will be composed of one Greek Cypriot, one Turkish Cypriot and one non-Cypriot voting member. As regards freedom of movement, freedom of settlement and right to property, a working group will discuss the exercise of these rights, including time-frames, practical regulations and possible compensation arrangements, taking into account guideline 3 of the 1977 agreement. Territorial adjustments, in addition to the areas already referred to in the 5 August 1981 Turkish Cypriot proposals, will be agreed upon. These territorial adjustments will result in the Turkish Cypriot province or federated state comprising in the order of 29 plus per cent of the territory of the Federal Republic. It is understood that when discussing the actual territorial adjustments the two sides will have in mind the 1977 highlevel agreement including ‘certain practical difficulties which may arise for the Turkish Cypriot community’ and the questions related to resettlement. Both sides agree to suggest special status areas adjacent to each

In Search of a Solution other for the purpose of enhancing trust between the sides. These areas will remain under their respective civilian jurisdictions. 8.1 A timetable for the withdrawal of non-Cypriot military troops and elements, as well as adequate guarantees, will be agreed upon prior to the establishment of a transitional federal government. In the meantime, military deconfrontation measures will be pursued by both sides, using the good offices and assistance of UNFICYP. 8.2 The two sides undertake to discuss these issues in good faith and to consider each other’s concerns on them. 9.1 A Fund for Development of the Turkish Cypriot province or federated state shall be established with a view to achieving an economic equilibrium between the two provinces or federated states. A fund will also be established to facilitate the resettlement of the Greek Cypriot displaced persons, and for the Turkish Cypriots displaced as a consequence of the implementation of paragraph 7.1. The federal government shall contribute to these funds. Foreign governments and international organisations shall be invited to contribute to the funds. 10.1 The Varosha area and the six additional areas delineated in the Turkish Cypriot map of 5 August 1981 will be placed under United Nations interim administration as part of the UNFICYP buffer zone for resettlement by. … 11.1 Both parties agree not to take any action tending to prejudice the process outlined in this agreement, both on the international scene and internally. 12.1 The Nicosia international airport will be reopened under interim United Nations administration with free access from both sides. The United Nations will conclude the arrangements to that effect by … 13.1 Adequate machinery for considering allegations of non-implementation of confidence-building measures will be agreed upon. The Secretary-General will make appropriate recommendations to both sides in this regard. 14.1 The parties to agree to establish working groups to work out the detailed agreements on the matters referred to in this agreement, whose elements are inter-related and constitute an integrated whole. The working groups will carry out their work under the direction of joint high-level meetings. These joint high-level meetings will take place every three to four months, on the basis of an agenda prepared by the Secretary-General, to discuss the issues which remain to be negotiated under this agreement, to review the work and provide guidance to the working groups. The joint highlevel meetings will be convened by the Secretary-General after adequate preparation. 14.2 Each working group will be composed of delegations from the two sides and will be chaired by a representative of the Secretary-General. The working groups will begin their meetings at the United Nations premises in Nicosia on. … Each working group will prepare a programme of work and will submit it for approval and guidance to the joint high-level

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Part I: Constitutional Issues meeting which will take place at the United Nations premises in Nicosia on … 14.3 The representative of the Secretary-General chairing each working group will every three months prepare an assessment of the progress made by the working group, which will be presented to the next joint high-level meeting together with the views of the Secretary-General. 15.1 The parties agree that, the required working groups having completed their work and having obtained the approval of the two sides, the transitional federal government of the Federal Republic of Cyprus will be set up on … 16.1 The Secretary-General will remain at the disposal of the parties to assist in the elaboration of this agreement, and, if required, in its interpretation.

28. Greek-Cypriot outline proposals for a federal solution to the Cyprus problem, 1989 Introductory Note On 30 January 1989, the President of the Republic, Mr George Vassiliou, presented to the leader of the Turkish Cypriot community, Mr Denktash a document entitled ‘Outline Proposals for the Establishment of a Federal Republic and for the Solution of the Cyprus Problem’. In this comprehensive document the Government of Cyprus set out in outline, proposals on all aspects of the Cyprus problem intended to assist the attempt to reach a negotiated settlement. The proposals of the Greek Cypriot side conform with the provisions of the High Level Agreements of 1977 and 1979 and are also in accord with the United Nations Charter and the United Nations Resolutions and Decisions on Cyprus. The spirit that permeates the proposals is the target of establishing an independent, sovereign, territorially integral, non-aligned Federal Republic which would promote peace and stability in the region and friendly relations and cooperation with all its neighbours. The document submitted clears the ground on important issues. Careful consideration has been given as to how the unity of the country will be preserved, so that all Cypriots can live and cooperate together in peace in an independent state, while at the same time a working federal system is to be established, capable of functioning effectively, so that progress for all is facilitated, confidence is generated for both sides and loyalty to the institutions of the Federation is engendered. There is a considered approach to treating equitably the problem of security for both communities in the context of a demilitarised Federal Republic,

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In Search of a Solution so that all citizens can have confidence in the future and can feel that their persons, property and all their other rights are secure. The proposed Federation provides for the equality of the constituent Provinces and for the implementation of bicommunality, with both communities participating in all the constitutional organs of the Federal Republic, while it safeguards the preservation of the culture and traditions of each community, and, at the same time, the democratic principle of equality of all Cypriot citizens, without discrimination, in all spheres, and protects human rights throughout Cyprus. The National Council reaffirmed many times the 1989 decision on the outline proposals. Its most recent relevant decision was taken at its session of July 29–30, August 1, 1996. During that session the National Council reaffirmed the 1989 unanimous decision on outline proposals for the establishment of a federal republic for the solution of the Cyprus problem that were submitted to the United Nations, and included in the outline proposals provision for Cyprus’ accession to the European Union. In addition the National Council reaffirmed that a solution to the Cyprus problem will only be reached through a peaceful dialogue under the auspices of the UN SecretaryGeneral and in line with UN Resolutions. Outline Proposals for the establishment of a Federal Republic and for the solution of the Cyprus problem, submitted on January 30, 1989. A. General Approach Convinced that agreement on a just and viable solution of the Cyprus problem is of the utmost urgency and that the suffering and uncertainty of the people of Cyprus must not be prolonged, the Greek Cypriot side is submitting outline proposals for the solution of the Cyprus problem. The Greek Cypriot side’s proposals for the establishment of a Federal Republic and for a solution to the Cyprus problem are in accord with the United Nations Charter and the United Nations Resolutions and Decisions on Cyprus. They are also within the scope of the High-Level Agreements of 1977 and 1979 to which the two sides reaffirmed their commitment at the beginning of the negotiations on 24 August 1988. The proposals conform fully to the spirit of the new round of Talks and take into account the interests and concerns of both sides, as was undertaken at the meeting with the SecretaryGeneral of the United Nations in New York on 22 and 23 November 1988. 1. Evaluation of the Two Communities Concerns In presenting these Proposals the Greek Cypriot side has taken into account the concerns expressed during the first round of the Talks. (a) Turkish Cypriot Concerns i Community concerns

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Part I: Constitutional Issues Desire to preserve Community identity and Community cultural traditions and to secure Community self-government in view of the fact that Turkish Cypriots compose one-fifth of the population of Cyprus and Greek Cypriots four-fifths. ii Security Concerns Turkish Cypriots express fears of attempts at domination either by the federal governmental power or by the Greek Cypriot Province or Community. These fears include an alleged danger of erosion of their political power. (b) Greek Cypriot Concerns i Community concerns The Greek Cypriot Community fears that the Greek Cypriot refugees will be prevented from returning to their homes and properties and that, due to the colonisation of northern Cyprus by settlers from Turkey, the Greek Cypriots will be gradually squeezed out of Cyprus. ii Security Concerns These concerns arise from the invasion and occupation of 37% of the territory of the Republic of Cyprus by Turkey and the expulsion from their homes and properties of 40% of the Greek Cypriot population. There is also the added fear that one day Turkey, with its overwhelming military superiority and rapidly increasing population of 55 million will use northern Cyprus as a springboard for further expansionism. In this connection Greek Cypriots fear that power exercisable by Turkish Cypriots under the Federal constitution may be used to frustrate the functioning of the State and that the resultant impasse will provide a pretext for a further invasion by Turkey at a tactically convenient time. 2. Objectives of the Current Proposals The proposals of the Greek Cypriot side aim to further the attempt to reach by 1 June 1989, a negotiated settlement of all aspects of the Cyprus problem, while conforming to the agreed basis of the negotiations, and taking into account the interests and concerns of both sides and so to achieve the following: (a) The unity of the country, so that all Cypriots can live and cooperate together in peace in an independent State. (b) A working federal system based on equitable territorial arrangements, capable of functioning effectively so that the interests of all can be nurtured and progress for all can be facilitated, thus giving confidence to both sides and generating loyalty to the institutions of the State. (c) Security for both Communities in the context of a demilitarised Federal Republic so that all citizens can have trust in the future and know that their persons, property and all other rights are safe. 250

In Search of a Solution (d) Implementation of bi-communality, with both Communities participating in all the constitutional organs of the Federal Republic. (e) Individual equality of all Cypriots, an absence of discrimination in all spheres, and protection of human rights throughout Cyprus, as a democratic country. (f) Preservation of the identity of Cyprus, its demographic structure, and of the culture and the traditions of each Community. (g) Fostering economic development with particular emphasis on redressing regional imbalances. (h) The aim of the solution would be to establish an independent, sovereign, territorially integral, non-aligned Federal Republic which aims at promoting world peace and cooperation among the peoples of the world, peace and stability in the region and at friendly relations and cooperation with all its neighbours. II. Demilitarisation And Security 1. The Greek Cypriot side believes that the way to remove both external and internal threats is the complete demilitarisation of the Republic. This involves: (a) withdrawal from the territory of the Republic of all non-Cypriot military forces and elements including settlers; and (b) the complete disbanding of all Cypriot military forces. 2. A timetable for the demilitarisation of the Republic and the withdrawal of the settlers must be drawn up and implemented before the establishment of the Federal Government or any transitional arrangement. To enhance the feeling of security of both Communities, international supervision of demilitarisation should be provided for. 3. Provision should be made for a UN controlled international force to assist in the maintenance of internal security both on the Federal and on the Provincial level for as long as necessary. The risk of physical conflict will be dissipated if there is demilitarisation, with no military forces in Cyprus other than UN personnel. 4. The Greek Cypriot side is particularly concerned about the withdrawal of Turkish settlers, whose presence is altering the demographic structure of the country, and who present a security risk for the whole island. III. The Protection of Human Rights including ‘The Three Freedoms’ It is essential to ensure that all citizens should, without discrimination of any kind, have equal civil, political, economic, social and cultural rights and, also, that all should have equal opportunities to share in the benefits of progress and development. In the Federal Republic, and throughout its territory, the fundamental 251

Part I: Constitutional Issues rights and liberties safeguarded by Part of the Constitution of the Republic of Cyprus of 1960, by the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and by the United Nations International Covenants on Human Rights shall continue to apply, including freedom of movement, freedom of settlement, and the right to property. The freedoms of movement and settlement and the right to property were accepted by both sides in Guideline 3 of the Makarios–Denktash High Level Agreement, which was reaffirmed in the Kyprianou–Denktash Agreement and should be enshrined in the Federal Constitution. Any regulation that is deemed necessary should be by Federal Law. The Greek Cypriot side of course accepts that there is a question of ‘practical difficulties’ to be taken into account in the initial implementation of the three freedoms. The Greek Cypriot side is ready to discuss various options in meeting the practical difficulties but whatever the arrangements made they must not be such as to frustrate or negate the principles involved, either overtly, indirectly or in spirit. IV. Guarantees 1. The Federal Republic of Cyprus, as a Sovereign Independent State and Member of the United Nations Organisation, can only have guarantees which will be in accordance with the Charter of the United Nations. 2. Any guarantees given should be multilateral. In the view of the Greek Cypriot side the best guarantee would be one by the Security Council. 3. No guarantor should have unilateral rights of intervention. 4. The scope of any guarantees should be the independence, territorial integrity, sovereignty, and constitutional order of the Federal Republic. 5. The guarantees should continue in force for as long as either community considers necessary their continuation. V. The Territorial Aspect The Greek Cypriot side is convinced that a proper investigation of the territorial issue is vital to reaching overall agreement. Should agreement be forthcoming on this, it will facilitate agreement on many other issues. This view was brought out in the Secretary-General’s Territorial Guidelines attached to the 18 November 1981 Evaluation and was emphasised in his Vienna Working Points of 6 August 1984. The greater the number of Greek Cypriot refugees who can be resettled in their homes under Greek Cypriot administration, the less the extent of any practical difficulties to be overcome as a consequence of Greek Cypriot refugees resettling in the Turkish Cypriot Province. There is one other aspect of the territorial issue which requires immediate consideration. It is the question of resettlement of Varosha, which was made a priority issue by Point 5 of the 19 May 1979 High Level Agreement and was

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In Search of a Solution reiterated in Security Council Resolution 550 (1984). That Agreement was reaffirmed at the inception of the current Talks. VI. Constitutional Arrangements The constitutional package of political, social and economic arrangements considered to be most suitable for meeting the interests and concerns of both communities is the following: 1. General (a) The Republic will be federally organised, with substantial powers being reserved to the constituent Provinces, including the welfare of their inhabitants, ensuring that matters of religion, personal status, education and culture will be matters for each Community. (b) The Federal Constitution will be the Supreme Law of the Republic and will only be amended with the concurrence of both Communities. (c) The Federal Republic of Cyprus will be composed of two regions, hereinafter called Provinces. (d) A significant characteristic of the federation will be that at the Federal level there will be equitable bicommunal participation in all governmental organs, legislative, executive, administrative and judicial. (e) The Greek Cypriot side proposes a composition of and representation in the organs which, while assuring adequate and effective participation, also permits the machinery of government to continue operating and not to be paralysed in the event of disagreement between Community political representatives. (f) Effective deadlock-resolving machinery must be provided for. (g) In all symbolic and cultural aspects of concern to the Federal Republic of Cyprus (such as determination of the flag, the anthem, and national holidays) there will be equal say by the two Communities, with each Community’s traditions and culture being respected. (h) The Federal Republic will have two official languages: Greek and Turkish. (i) There will be a constitutional prohibition of the total or partial union of Cyprus with any other country or of separatist independence or secession. 2. The Provinces (a) Each Community will administer a Province, which will have equal status vis-à-vis the other Province. The two component parts of the Federation, i.e. the two Provincial Governments, will be equal to each other and coordinate with the Federal Government. (b) The territorial arrangements of the Federal Republic should be equitably drawn, in a way which would enable a considerable proportion of Greek Cypriot refugees to return to their homes under Greek Cypriot administration. In such a case, provided that most Turkish Cypriots choose to reside in the Turkish Cypriot administered Province, the Turkish Cyp-

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Part I: Constitutional Issues riots will constitute a majority there, even if all Greek Cypriot refugees were to return to that Province. (c) The powers and functions constitutionally allocated to Federal and Provincial Governments respectively will be such that Provincial Governments will have extensive legislative, administrative and judicial competence to provide for the developments of the Province, the welfare of the Province’s population, its education, and the preservation of its culture. (d) There will be no possibility of Federal encroachment on the powers and functions of the Provinces. The latter will be constitutionally entrenched, the initial allocation having been agreed by the two sides. (e) Matters may be entrusted to the Provinces by Federal Law, though not expressly enumerated in the Provincial Powers. Consideration could also be given to having a Concurrent List of powers to be exercised in accordance with arrangements to be agreed. 3. The Federal Executive (a) President and Vice-President: (i) There will be a President and Vice-President, one of whom will be a Greek Cypriot and the other a Turkish Cypriot. (ii) On the manner of the election of the President and the Vice-President the Greek Cypriot side is willing to consider two options. OPTION A The President will be elected by votes of the Greek Cypriot Community and the Vice-President by votes of the Turkish Cypriot Community. OPTION B The President will be elected by universal suffrage on a common roll and by an absolute majority of votes. Any citizen of the Republic can be a candidate for election. If the elected President is a Greek Cypriot, the Vice-Presidential candidates will all be Turkish Cypriots. Greek Cypriots will vote in the election for the Vice-President, the Greek Cypriot votes, however, being weighted so that they form the same percentage of the total vote as the Turkish Cypriot votes in the election of the President. Though it cannot be foreseen that voters will vote independently of community membership at the beginning, this cross-voting lines will ensure that any Presidential or Vice-Presidential candidate must seriously take into account both Communities’ interests and concerns. In the future, it is hoped that the President will be elected independently of Community membership, so that nothing will bar a Turkish Cypriot from becoming President of the Republic.

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In Search of a Solution (iii) The Vice-President will replace the President in case of the latter’s absence or incapacity. (iv) The Vice-President will be vested with powers and functions which will be commonly agreed. (v) The President and the Vice-President would in effect have co-extensive power in designating the members of their Community who will hold high executive office or in promulgating jointly laws and decisions. (b) Council of Ministers: (i) The Council of Ministers will be composed of the President, the VicePresident and 10 Ministers, 7 of whom will be Greek Cypriot and 3 Turkish Cypriot. The President and Vice-President will each select the Ministers of his own Community but the instrument of appointment for all Ministers will be signed by both. (ii) An important Ministry will be allocated to a Turkish Cypriot. (iii) The President and the Vice-President, by using the powers of recourse and reference to an impartial Federal Supreme Court in which the judicial power is coequally exercised in all federal matters and constitutional cases will ensure that there is no discrimination against either Community and no unconstitutional action. 4. The Federal Legislature (a) There will be a bi-cameral Federal Legislature. (b) The Lower House will reflect in its composition the equality of citizens and will legislate on all Federal matters. (c) The Upper House will reflect in its composition the equal Status of the Provinces, and will have competence in major matters. (d) Should deadlock arise between the two Houses there will be machinery to ensure continued functioning of the Government. (e) The Greek Cypriot side is ready to consider appropriate mechanisms to ensure that no significant measure affecting particularly the Turkish Cypriot Community can be passed without Turkish Cypriot Parliamentary support. (f) Reinforced majorities ensuring the assent of legislators of both Communities would be provided for Constitutional amendment. 5. Powers and Functions of the Federal Organs and of the Provinces The Greek Cypriot side considers that the Powers and Functions of the Federal Organs should secure the unity of the country, promote cooperation throughout the Republic, maintain the single international personality of the Republic, promote the unity of the internal market and the economy of Cyprus and in general contribute to the harmonisation of Federal and Provincial organs, measures and Laws. In the Greek Cypriots side’s view the Provinces should have such Powers

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Part I: Constitutional Issues and Functions as to enhance the feeling of security of the citizens, providing for Provincial justice and policing, secure the development of the Province, safeguard the traditions, and provide for the cultural development of the Province and promote cooperation with the other Provinces and with the Federal Government. For the specific allocation of Powers and Functions the Greek Cypriot side is willing to consider two options: Option A There could be two Lists of Powers and Functions, one Federal and one Provincial, with detailed definition. Should there be litigation as to whether a topic was within competence, the Federal Supreme Court would be instructed by the Constitution to settle the matter by applying a rule of interpretation that disputed functions are vested in the governmental level whose Listed Powers are ejusdem generis. Option B Consideration could be given to according concurrent power to the Federal and Provincial Governments. In this case there would be three Lists of Powers and Functions: The Federal List, The Provincial List and the Concurrent List. 6. Federal Judiciary (a) In all constitutional cases, and when deciding any federal matter the Federal Supreme Court will be equally composed on a bicommunal basis. (b) Each Province will have its own administration of justice system. The Communities would therefore have equal participation in the sphere of administration of justice. 7. Economic Issues A solution of the Cyprus problem will result in an increase in welfare for all the Island’s population, and will be especially advantageous to the Turkish Cypriots. The present artificial division of the economy into two, has negative effects on the economy of the whole Island, but these have been more pronounced on the smaller and economically weaker Turkish Cypriot Community. As a result of this artificial division, the level of prosperity of the Turkish Cypriots is substantially lower than that of the Greek Cypriots and the gap is growing. A contributing factor to the economic problems of the Turkish Cypriots has been their integration with the Turkish economy, with the subsequent ‘importation’ of the problems that characterise that economy (high inflation rates, constant devaluation and distortions) to the detriment of the Turkish Cypriots. In addition to facilitating economic equalisation, the resolution of the Cyprus problem will release resources presently obstructed by the artificial 256

In Search of a Solution divide and will enable Cyprus to develop its full economic potential. The increase in confidence will intensify economic activity and greatly boost investment, trade, tourism and the economy in general. 1. The Greek Cypriot side proposes that the prospects for equalisation and development that will be created by the integration of the economy, should be reinforced by overt government action at federal and provincial level, guided by the following objectives: (a) The establishment of conditions allowing all Cypriots to have equal opportunities for economic attainment and prosperity. (b) The promotion of economic development for the purpose of reducing disparities in opportunities and in welfare. (c) The provision of adequate public and social services to all citizens. 2. To attain the overall objective that everyone should have equal opportunity to share in the overall prosperity that will follow a solution to the Cyprus problem, the Greek Cypriot side proposes the following: (a) There will be a clear separation of economic powers between the central and the provincial governments. (b) The provincial governments will have adequate resources and powers for the promotion of the welfare and further development of their province. (c) Machinery will be established, through the creation of a central development fund, for ensuring balanced development of all areas of Cyprus and equal opportunities for all Cypriots. (d) There will be one currency managed by the Central Bank. (e) The Provincial government will have adequate tax revenues. (f) The imposition of Customs duties will be the exclusive responsibility of the Federal Government. (g) The commercial interests and rights of Turkish Cypriot businessmen will be adequately taken into account. (h) A reintegrated growing economy will make the creative solution of the problem of Turkish Cypriot and Greek Cypriot unemployed university graduates easier through the growth potential that can be realized by a reintegrated economy. (i) Transitional economic arrangements, to apply after the establishment of a Federal Republic will be discussed with a view to facilitating the reintegration of the economy. 3. Cyprus is an associate member of the EEC, and has entered into a Customs Union as part of the second phase of the Association Agreement, and will increasingly develop closer links with the EEC. This could have beneficial effects on the welfare of all Cypriots and help in promoting balanced regional development. 257

Part I: Constitutional Issues The Federal Government should have responsibility for the common external EEC tariff, but resources should be equitably distributed. January 1989

29. Boutros-Ghali’s set of ideas on an overall framework agreement on Cyprus (1992) 1. The leader of the Greek Cypriot community and the leader of the Turkish Cypriot community have negotiated on an equal footing, under the auspices of the mission of good offices of the Secretary-General, the following overall framework agreement on Cyprus which constitutes a major step towards a just and lasting settlement of the Cyprus question. The overall framework agreement will be submitted to the two communities in separate referendums within thirty days of its completion by the two leaders at a high-level international meeting. I. OVERALL OBJECTIVES 2. The overall framework agreement is an integrated whole which, when it is approved by both communities in separate referendums and the provisions contained in the transitional arrangements have been implemented, will result in a new partnership and a new constitution for Cyprus that will govern the relations of the two communities on a federal basis that is bi-communal as regards the constitutional aspects and bizonal as regards the territorial aspects. The overall framework agreement is based on the 1977 and 1979 high-level agreements, relevant United Nations resolutions, in particular Security Council resolutions 367 (1975), 649 (1990), 716 (1991) and 750 (1992), and the guiding principles set out below. 3. The overall framework agreement recognizes that Cyprus is the common home of the Greek Cypriot community and of the Turkish Cypriot community and that their relationship is not one of majority and minority but one of two communities in the federal republic of Cyprus. It safeguards the cultural, religious, political, social and linguistic identity of each community. 4. The overall framework agreement ensures that the Cyprus settlement is based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising two politically equal communities as defined in paragraph 11 of the Secretary-General’s report of 3 April 1992 (S/23780) in a bi-communal and bi-zonal federation, and that the

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In Search of a Solution settlement must exclude union in whole or in part with any other country or any form of partition or secession. 5. The overall framework agreement acknowledges and ensures the political equality of the two communities. While political equality does not mean equal numerical participation in all branches and administration of the federal government, it will be reflected in the fact that the approval and amendment of the federal constitution will require the approval of both communities; in the effective participation of both communities in all organs and decisions of the federal government; in safeguards to ensure that the federal government will not be empowered to adopt any measures against the interests of one community; and in the equality and identical powers and functions of the two federated states. 6. The overall framework agreement provides for functions and powers of the federal government, including its structure, composition and functioning of its three branches, that will ensure the effective participation of the two communities and the effective functioning of the federal government, which will require an appropriate deadlockresolving machinery. 7. The two communities acknowledge each other’s identity and integrity, and commit themselves to work actively to achieve a new relationship based on mutual respect, friendship and co-operation. Toward this end, the two communities agree to change all practices incompatible with this commitment and to refrain from any action which would impair the efforts for a negotiated settlement. They pledge to launch immediately a programme of action to promote goodwill and closer relations between them (see appendix). II. GUIDING PRINCIPLES 8. The bi-communal and bi-zonal federation will be established freely by the Greek Cypriot and Turkish Cypriot communities. All powers not vested by them in the federal government will rest with the two federated states. 9. The federal constitution will come into force after its approval by the two communities in separate referendums and can only be amended with the approval of both federated states. 10. The federal republic will be one territory composed of two politically equal federated states. 11. The federal republic will have one sovereignty which is indivisible and which emanates equally from the Greek Cypriot and Turkish Cypriot communities. One community cannot claim sovereignty over the other community. The federal republic will have one international personality and one citizenship regulated by federal law in accordance with the federal constitution. 12. The federal constitution will safeguard the identity, integrity and security

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13.

14.

15. 16.

17.

18. 19. 20. 21. 22.

23.

of each community as well as their political, economic, social, cultural, linguistic and religious rights. All citizens will be equal under the law. The federal republic will be secular. Religious functionaries will be prohibited from holding elected or appointed political office in the federal government or in the federated states. The federal republic will maintain special ties of friendship with Greece and Turkey and will accord most favoured nation treatment to Greece and Turkey in connection with all agreements whatever their nature. The federal republic will continue the membership in the Commonwealth. The official languages of the federal republic will be Greek and Turkish. The English language may also be used. The federal republic will have its own flag to be agreed upon. The federal flag will be flown on federal buildings and federal locations to the exclusion of all other flags. Each federated state will have its own flag. The holidays to be observed by the federal government will be agreed upon and embodied in the federal constitution. Each federated state will observe the federal holidays as well as those established by it. The two federated states will have identical powers and functions. Each federated state will be administered by one community. Each federated state will decide on its own governmental arrangement in a manner consistent with the federal constitution. The federal Government cannot encroach upon the powers and functions of the two federated states. Security, law and order and the administration of justice in its territory will be the responsibility of each federated state in a manner consistent with the federal constitution. The two federated states will cooperate in the preservation and/or use of historical sites and religious shrines of both faiths to be agreed to during the transitional period.

III. CONSTITUTIONAL ASPECTS OF THE FEDERATION 24. The powers, functions and structure of the federal Government will be in conformity with the overall objectives and guiding principles set out above. A. Powers and functions to be vested in the federal Government 25. The federal Government will have the powers and functions listed below. All powers and functions not vested in the federal Government will rest with the two federated states. The federated states may decide jointly to confer additional powers and functions to the federal Government or to transfer powers and functions from the federal Government to the federated states. 26. The federal Government will have the following powers and functions: 260

In Search of a Solution (a) Foreign affairs (the federated states may enter into agreements with foreign Governments and international organizations in their areas of competence. The representation in foreign affairs will reflect the bicommunal nature of the federal republic); (b) Central bank functions (including the issuance of currency); (c) Customs and the coordination of international trade; (d) Airports and ports as concerns international matters; (e) Federal budget and federal taxation; (f) Immigration and citizenship; (g) Defence (to be discussed also in connection with the Treaties of Guarantee and of Alliance); (h) Federal judiciary and federal police; (i) Federal postal and telecommunications services; (j) Patents and trademarks; (k) Appointment of federal officials and civil servants (on a 70:30 Greek Cypriot/Turkish Cypriot ratio); (l) Standard setting for public health, environment, use and preservation of natural resources, and weights and measures; (m) Coordination of tourism and industrial activities. 27. The federal powers and functions will be executed by the federal Government or, in accordance with agreements, through delegation to the federated states. B. Structure, Composition and Functioning of the Federal Government 1. The Legislature 28. The legislature will be composed of a lower house and an upper house. The presidents of the lower house and of the upper house cannot come from the same community. The president and vice-president of each house will not come from the same community. 29. All laws must be approved by both houses. The lower house will be bicommunal with a 70:30 Greek Cypriot/Turkish Cypriot ratio. 31. The upper house will have a 50:50 ratio representing the two federated states. 32. All laws will be adopted by majority in each house. A majority of the Greek Cypriot or Turkish Cypriot representatives in the lower house may decide, on matters related to foreign affairs, defence, security, budget, taxation, immigration and citizenship, that the adoption of a law in the lower house will require separate majorities of the representatives of both communities. 33. Separate Greek Cypriot and Turkish Cypriot majorities will be required to constitute a quorum in each house. If a quorum is not attained in either house on two consecutive meetings because of the absence of a majority of one or both communities, the president of the relevant house will call a meeting in no less than five days and no more than ten

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Part I: Constitutional Issues days. At that meeting, a majority of the upper house will constitute a quorum. In the lower house, 30% of the total membership will constitute a quorum. 34. If the two houses fail to adopt a bill or decision, they will initiate proceedings to obtain a consensus while ensuring the continued functioning of the federal government. To this end, a conference committee will be established. The conference committee will be composed of two persons each selected by the Greek Cypriot and Turkish Cypriot groups equally from among the members of the two houses of the federal legislature. The text of the legislation or decision agreed to by the conference committee will be submitted to both houses for approval. 35. In the event the federal budget is not adopted in one or both houses and until an agreement is reached by the conference committee and is adopted by both houses, the provisions of the most recent federal budget plus inflation shall remain in effect. 2. The Executive 36. The federal executive will consist of a federal president, a federal vicepresident, and a federal council of ministers. The president and the vicepresident will symbolize the unity of the country and the political equality of the two communities. (On the question of the election of the president and vice-president, the two sides have expressed different positions. The Greek Cypriot side prefers a system under which the president is elected by popular universal suffrage. The Turkish Cypriot side prefers a system under which the president rotates between the two communities.) 37. To facilitate the effective launching of the federal government and for the initial eight years, the president and vice-president will also be the heads of their respective federated states. 38. There will be a council of ministers composed of Greek Cypriot and Turkish Cypriot ministers on a 7:3 ratio. The president and vice-president will designate the ministers from their respective communities who will appoint them by an instrument signed by them both. One of the following three ministries, that is foreign affairs, finance, or defence, will be allocated to a Turkish Cypriot minister. The president and the foreign minister will not come from the same community. 39. The president and the vice-president will discuss the preparation of the agenda of the council of ministers and each can include items in the agenda. 40. Decisions of the council of ministers will be taken by majority vote. However, decisions of the council of ministers concerning foreign affairs, defence, security, budget, taxation, immigration and citizenship will require the concurrence of both the president and the vice-president.

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In Search of a Solution 41. Arrangements related to the implementation of foreign policy and the composition of the foreign service will be set out in the federal constitution. 42. The president and the vice-president will, separately or conjointly, have the right to veto any law or decision of the legislature concerning foreign affairs, defence, security, budget, taxation, immigration and citizenship. The president and vice-president will have the right, separately or conjointly, to return any law or decision of the legislature or any decision of the council of ministers for reconsideration. 3. The Judiciary 43. The federal judiciary will consist of a supreme court composed of an equal number of Greek Cypriot and Turkish Cypriot judges appointed jointly by the president and vice-president with the consent of the upper house. The supreme court will sit as the federal constitutional court and the highest court of the federation. Its presidency will rotate between the senior Greek Cypriot and Turkish Cypriot members of the supreme court. Lower federal courts may be established in each federated state. 44. The supreme court will deal with matters arising under the federal constitution and federal laws, and will be empowered to fulfil other judiciary functions related to federal matters attributed to it by the federal constitution or federal legislation. 45. Each federated state will have its own judiciary to deal with matters not attributed to the federal judiciary by the federal constitution. 46. The federal constitution will establish the procedure for ascertaining the constitutionality of federal laws and executive acts, as well as adequate machinery of judicial review to ensure the compliance of legislative, executive, and judicial acts of the federated states with the federal constitution. C. Fundamental rights, including the three freedoms, and political, economic, social, and cultural rights 47. All universally recognized fundamental rights and freedoms will be included in the federal constitution. 48. The freedom of movement, the freedom of settlement and the right to property will be safeguarded in the federal constitution. The implementtation of these rights will take into account the 1977 high-level agreement and the guiding principles set out above. 49. The freedom of movement will be exercised without any restrictions as soon as the federal republic is established, subject only to nondiscriminatory normal police functions. 50. The freedom of settlement and the right to property will be implemented after the resettlement process arising from the territorial adjustments has been completed. The federated states will regulate these rights in a manner to be agreed upon during the transitional period consistent with the federal constitution. 263

Part I: Constitutional Issues 51. Persons who are known to have been or are actively involved in acts of violence or in incitement to violence and/or hatred against persons of the other community may, subject to due process of law, be prevented from going to the federated state administered by the other community. IV. SECURITY AND GUARANTEE 52. The security of the federal republic and of the Greek Cypriot and Turkish Cypriot federated states will be guaranteed. 53. The demilitarization of the federal republic remains an objective. 54. The 1960 Treaties of Guarantee and of Alliance continue in force and will be supplemented in a document to be appended as set out below. 55. The Treaty of Guarantee will ensure the independence and territorial integrity of the federal republic and exclude union in whole or in part with any other country and any form of partition or secession; ensure the security of the Greek Cypriot and the Turkish Cypriot federated states; and ensure against the unilateral change of the new constitutional order of the federal republic by either community. 56. A numerical balance of Greek and Greek Cypriot troops and equipment on the one hand and of Turkish and Turkish Cypriot troops and equipment on the other hand will be achieved within ___ months after the overall framework agreement has been approved by the two communities in separate referendums. 57. A timetable will be established for the further reduction to an agreed level of the Greek Cypriot and the Turkish Cypriot units and for the withdrawal of all non-Cypriot forces not provided for under the Treaty of Alliance. This timetable will be fully implemented prior to the establishment of the federal republic and in phases parallel to the implementation of the programme of action set out in annex. 58. The Treaty of Alliance will provide for the stationing in Cyprus of Greek and Turkish contingents of equal size and equipment not exceeding ___ persons each. The Greek contingent will be stationed in the federated state administered by the Greek Cypriot community and cannot enter the federated state administered by the Turkish Cypriot community. The Turkish contingent will be stationed in the federated state administered by the Turkish Cypriot community and cannot enter the federated state administered by the Greek Cypriot community. 59. The federal republic will maintain a federal force consisting of a Greek Cypriot and a Turkish Cypriot unit of equal size and equipment not exceeding the size of the Greek and Turkish contingents, under the joint overall command of the president and the vice-president. The Greek Cypriot unit will be stationed in the federated state administered by the Greek Cypriot community. The Turkish Cypriot unit will be stationed in the federated state administered by the Turkish Cypriot community. The president and the vice-president will jointly decide on the locations of the units. 264

In Search of a Solution 60. There will not be any reserve force and any military or paramilitary training of civilian groups. 61. The Greek Cypriot and Turkish Cypriot units will promote mutual respect, friendship, and closer relations between the two communities and foster their welfare by carrying out joint social service activities throughout the federal republic. 62. Each federated state and the federal republic will have a police force. All paramilitary activities and the ownership of weapons other than those licensed for hunting will be outlawed throughout the federal republic and any infraction will be a federal offence. The importation or transit of weapons and other military equipment other than that duly approved by the federal government will be prohibited. 63. Immediately after the approval of the overall framework agreement by the two communities in separate referendums, an interim monitoring committee will be established composed of the three guarantor powers, the two communities and the United Nations Peace-keeping Force in Cyprus (UNFICYP) which will be responsible for: (a) Monitoring the achievement of the agreed numerical balance of Greek and Greek Cypriot troops and equipment on the one hand and Turkish and Turkish Cypriot troops and equipment on the other hand to be implemented within ___ months after the overall framework agreement has been approved by the two communities in separate referendums; (b) Monitoring the achievement of the agreed timetable for the further reduction to the agreed level of Greek Cypriot and Turkish Cypriot units and the withdrawal of all non-Cypriot forces not provided for in the Treaty of Alliance prior to the establishment of the federal republic. 64. The Treaty of Guarantee, in a manner consistent with the principles of the Conference on Security and Cooperation in Europe (CSCE), with which the federal republic will affirm its commitment, will provide for a supervision and verification committee comprising representatives of the guarantor powers and of the federal president and federal vicepresident. The United Nations will provide the support personnel to assist the supervision and verification committee in carrying out its functions. 65. The supervision and verification committee will be responsible for investigating any development which in the view of either the federal president or federal vice-president or any guarantor power is a threat to the security of either community or of the federal republic through onsite inspection and other methods the supervision and verification committee deems necessary. The supervision and verification committee will make recommendations for rectifying any situation it has established to be in contravention of the arrangements covered by the Treaties of

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Part I: Constitutional Issues Guarantee and of Alliance. The parties will be obligated to implement these recommendations promptly and in good will. 66. The United Nations Security Council will be requested to revise the mandate of UNFICYP, including support of the supervision and verification committee. V. TERRITORIAL ADJUSTMENTS 67. The Greek Cypriot and Turkish Cypriot communities agree on the territories of the federated states administered by each, taking into account the 1977 high-level agreement. 68. The map attached hereto sets out the territories of the two federated states. The territorial agreement shall be respected and will be included in the federal constitution. 69. Persons affected by the territorial adjustments will have the option of remaining in the area concerned or relocating to the federated state administered by their own community. 70. All necessary arrangements for the relocation of persons affected by territorial adjustments will be satisfactorily implemented before resettlements are carried out. The fund to be established related to displaced persons will be available for this purpose. 71. The territorial adjustment will not affect the water resources available to each federated state. The water resources available throughout the federation will be allocated to the two federated states at a proportion at least equal to their respective current demand. VI. DISPLACED PERSONS 72. The property claims of Greek Cypriot and Turkish Cypriot displaced persons are recognized and will be dealt with fairly on the basis of a timeframe and practical regulations based on the 1977 high-level agreement, on the need to ensure social peace and harmony, and on the arrangements set out below. A. Areas that will come under Greek Cypriot administration 73. The first priority will be given to the satisfactory relocation of and support for Turkish Cypriots living in the area that will come under Greek Cypriot administration and to displaced persons returning to that area. 74. Turkish Cypriots who in 1974 resided in the area that will come under Greek Cypriot administration will have the option to remain in their property or to request to receive a comparable residence in the area that will come under Turkish Cypriot administration. Turkish Cypriot displaced persons currently residing in the area that will come under Greek Cypriot administration will have the option to receive comparable residence in that area, to return to their former residence, or to receive a comparable residence in the area that will come under Turkish Cypriot administration.

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In Search of a Solution 75. A bi-communal committee will be established immediately after the overall framework agreement has been approved in the referendums to arrange for suitable housing for all persons affected by the territorial adjustments. B. Other areas under Greek Cypriot and Turkish Cypriot administration 76. Each community will establish an agency to deal with all matters related to displaced persons. 77. The ownership of the property of displaced persons, in respect of which those persons seek compensation, will be transferred to the ownership of the community in which the property is located. To this end, all titles of properties will be exchanged on a global communal basis between the two agencies at the 1974 value plus inflation. Displaced persons will be compensated by the agency of their community from funds obtained from the sale of the properties transferred to the agency, or through the exchange of property. The shortfall in funds necessary for compensation will be covered by the federal Government from a compensation fund obtained from various possible sources such as windfall taxes on the increased value of transferred properties following the overall agreement, and savings from defence spending. Governments and international organizations will also be invited to contribute to the compensation fund. In this connection, the option of long-term leasing and other commercial arrangements may also be considered. 78. Persons from both communities who in 1974 resided and/or owned property in the federated state administered by the other community or their heirs will be able to file compensation claims. Persons belonging to the Turkish Cypriot community who were displaced after December 1963 or their heirs may also file claims. 79. Current permanent residents of Cyprus who at the time of displacement owned their permanent residence in the federated state administered by the other community and who wish to resume their permanent residence at that location may also select the option to return. 80. Current permanent residents of Cyprus who at the time of displacement rented their permanent residence in the federated state administered by the other community and who wish to resume their permanent residence in that area will be given priority under the freedom of settlement arrangements. 81. All claims must be filed within six months after the approval of the overall framework agreement. 82. ___ thousand displaced persons who elect to return to their former permanent residence will be processed by the federated state concerned each year for ___ years. In addition, Maronites who in 1974 had their permanent residence in

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Part I: Constitutional Issues the federated state under the administration of the Turkish Cypriot community may elect to return to their properties. The two federated states will review the situation at the conclusion of the above mentioned period in the light of the experience gained. 83. This period will begin after the resettlement and rehabilitation process arising from territorial adjustments are essentially completed. 84. The settlement of those who select to return will take place after the persons who will be affected have been satisfactorily relocated. If the current occupant is also a displaced person and wishes to remain, or if the property has been substantially altered or has been converted to public use, the former permanent resident will be compensated or will be provided an accommodation of similar value. 85. Persons who are known to have been actively or are actively involved in acts of violence or incitement to violence and/or hatred against persons of the other community may, subject to due process of law, be prevented from returning to the federated state administered by the other community. VII. ECONOMIC DEVELOPMENT AND SAFEGUARDS 86. A priority objective of the federal republic will be the development of a balanced economy that will benefit equally both federated states. A major programme of action will be established to correct the economic imbalance and ensure economic equilibrium between the two communities through special measures to promote the development of the federated state administered by the Turkish Cypriot community. A special fund will be established for this purpose. Foreign Governments and international organizations will be invited by the Security Council to contribute to this fund. 87. To help promote a balanced economy, persons may be employed throughout the federal republic at equal pay. 88. To protect in particular the federated state administered by the Turkish Cypriot community, special measures and safeguards will be adopted to avoid adverse economic effects resulting from the establishment of the federal republic, for example as a result of the adoption of one currency and the establishment of one customs frontier. 89. Each federated state may, in addition to federal taxation, establish and administer its own tax regime and determine tax rates in line with its economic objectives and needs. 90. In line with annex F, part II, of the Treaty of Establishment, the federal republic will accord most favoured nation treatment to Greece and Turkey in connection with all agreements whatever their nature. 91. A bi-communal committee will be established as part of the transitional arrangements to prepare the special programmes and measures envisaged above prior to the establishment of the federal republic. The United

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In Search of a Solution Nations Development Programme (UNDP) will provide the committee with support. The committee may request other expert assistance as required. 92. Matters related to the membership of the federal republic in the European Economic Community will be discussed and agreed to, and will be submitted for the approval of the two communities in separate referendums. (This paragraph relates exclusively to arrangements that might be put in place in Cyprus and in no way impinges upon the prerogatives of the European Community and its member states in matters concerning membership in the Community.) VIII. TRANSITIONAL ARRANGEMENTS 93. Immediately after the approval in separate referendums of the overall framework agreement on Cyprus, the following transitional arrangements will be carried out to implement the overall framework agreement, including the preparation and putting into force of the federal constitution. All transitional arrangements will be fully implemented in an 18month period. 94. In line with this overall framework agreement, bi-communal committees will be established immediately to implement the provisions related to the preparation and putting into force of the federal constitution and electoral law, the establishment of the federal civil service, property settlement claims, economic development and safeguards, arrangements related to the territorial adjustments to take effect at the time the federal republic is established, and the programme of action set out in the appendix. Furthermore, a committee composed of the representatives of the guarantor powers and the two communities will be established to supplement the Treaties of Guarantee and of Alliance. The United Nations will assist each committee in fulfilling its functions. Each side may employ foreign experts. 95. In addition, a committee composed of the leaders of the two communities and a representative of the Secretary-General of the United Nations will be established immediately to work out the transitional arrangements procedures foreseen herein and to ensure that the functions of the above mentioned committees are implemented in an effective and timely manner. Furthermore, this committee will, within 30 days of its completion by the two leaders at a high-level international meeting, organize separate referendums to approve the overall framework agreement, and, at the appropriate time during the transitional period, organize separate referendums to approve the federal constitution and the elections of federal officials with the assistance of and verification by the United Nations. 96. During the transitional period, the current arrangements for the administration of the day-to-day internal affairs of each side will

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97.

98.

99.

100.

continue, unless modified by the provisions of the overall framework agreement. In matters affecting Cyprus as a whole, such as international trade and tourism, the same principle shall apply on the understanding that these matters will be administered on an interim basis in the common interest. To this end, interim procedures will be agreed to by the two communities. During the transitional period, external affairs shall be conducted in a manner which accords with the principles contained in the overall framework agreement and in consensus with the leaders of the two communities. Arrangements shall be made for joint delegations, in particular to international meetings. The statutes, laws, regulations, rules, contracts currently in effect on both sides shall be considered valid to the extent they are not inconsistent with the overall framework agreement. The federal government may review prior international agreements to determine whether any action should be taken in respect thereto. Each community will prepare its federated state constitution and electoral law in line with the federal constitution and electoral law, and will organize its federated state governmental arrangements which shall both come into being at the same time that the federal republic is established. The date of entry into force of the federal constitution will be specified therein and will be the date on which the federal republic comes into being.

IX. NOTIFICATION TO THE UNITED NATIONS 101. As soon as the overall framework agreement has been approved in separate referendums by each community, the leaders of the two communities will address a letter to the Secretary-General of the United Nations transmitting to him the text of the overall framework agreement with the request that he submit the letter and the overall framework agreement to the Security Council so that the Council may take note of the decision of the two communities to establish a federal republic in the manner described in the overall framework agreement. Appendix As soon as the overall framework agreement has been approved by the two communities in separate referendums the following programme of action to promote goodwill and close relations between the two communities will be implemented. 1. The flow of persons and goods, services, capital, communication, and international assistance from and/or to Cyprus will take place on an equal basis throughout Cyprus and any restrictions to the contrary will be lifted.

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In Search of a Solution 2. All restrictions on travel by members of the Turkish Cypriot community will be lifted. The two communities will agree on interim procedures. 3. The restrictions on the movement of tourists will be lifted. 4. Objections to the participation in international sport and cultural activities will be lifted. 5. The freedom of movement will be facilitated subject, by way of agreement between the two communities, only to minimal procedures. 6. Pending the establishment of the federal republic, Varosha will be placed under United Nations administration and a programme of action for its restoration will be prepared and implemented. 7. All military modernization programmes and strengthening of positions will cease. The two sides will cooperate with UNFICYP in extending the unmanning of positions along the buffer zone to all areas where the troops of both sides remain in close proximity to each other. The freedom of movement of UNFICYP throughout Cyprus will be ensured. 8. A bi-communal committee will be established to review the textbooks used in schools on each side and make recommendations for the removal of material that is contrary to the promotion of goodwill and close relations between the two communities. The committee may also recommend positive measures to promote that objective. 9. Both communities will promote goodwill and close relations between them and friendly relations with Greece and Turkey. 10. Both communities will, within the limits of their authority, terminate all current or pending recourse before an international body against the other community or Greece or Turkey. 11. A bi-communal committee will be established to survey the water situation in Cyprus and make recommendations on ways of meeting the water needs of Cyprus, including from external sources. The committee may request expert assistance as required. 12. A bi-communal committee will be established to prepare and launch a programme of action for the restoration of historical and religious sites throughout Cyprus. The committee may request expert assistance as required. 13. A bi-communal committee will be established to undertake a population census of both communities. The committee may request expert assistance as required. 14. The two communities undertake to support the efforts of the Committee on Missing Persons to reach early conclusions wherever possible on the fate of the missing persons. To this end, the Committee is requested to undertake without delay the investigation of all cases of missing persons and, to this end, to reassess the criteria for arriving at conclusions on the fate of the missing.

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30. Confidence building measures: an introduction (1 July 1993) Excerpts from the Report of the UN Secretary-General B26026, 1 July 1993 • • • • •

• • • • • •

•

•

Expert cooperation on the short-term and long-term water problem in Cyprus, in particular increasing the water supply. Expert cooperation on education, in particular to promote intercommunal harmony and friendship. Joint cultural and sports events, including the joint use of the Cetinkaya field in the Buffer Zone near the Ledra Palace Hotel. Meetings of political party leaders of both sides. Journalists of both sides may cross the lines by only showing their press ID cards issued by the United Nations. Open joint journalist meeting room at the Ledra Palace Hotel. Meeting of the Chambers of Commerce and Industry of both sides to identify and develop joint commercial projects. International assistance shall benefit the two communities in an equitable manner. Expert cooperation in areas such as health and the environment. Cooperative arrangements on electricity taking into account the electric generator in the north coming on stream soon. Inter-communal cooperation in Pyla, including the free movement of goods in the same manner as agreed in Varosha. Cooperation between the Representatives of the Greek Cypriot and Turkish Cypriot Communities of Nicosia to identify and implement joint projects for the benefit of both sides in Nicosia. Cooperate with UNFICYP in extending the unmanning agreement of 1989 to cover all areas of the United Nations-controlled buffer zone where the two sides are in close proximity to each other. Varosha (see paragraphs 37 and 38 below).

37. The proposal concerning Varosha, as supplemented in the New York discussions, is that the fenced area would be placed under United Nations administration as from an agreed date, pending a mutually agreed overall solution to the Cyprus problem. It would be a special area for bi-communal contact and commerce, a kind of free trade zone in which both sides could trade goods and services. 38. In detail, the proposal provides for the following: •

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In administering the fenced area (the Area), the United Nations could enlist the advice and assistance of both sides. The United Nations would be responsible for the security of the area. The costs of the

In Search of a Solution

•

•

•

•

•

•

•

administration and security of the Area would be borne locally in an agreed manner. The Area would be opened in two stages. In stage one, that part of the fenced area to the south of Dhimokratias Street would be opened, two months after being placed under United Nations administration, for rehabilitation, the owners of property in that part could reclaim possession of their property, and bicommunal contact would be initiated in line with the provisions of the two subparagraphs immediately hereunder. In stage two, beginning at an agreed date, the same arrangements would be applied to the part of the fenced area to the north of Dhimokratias Street. The Area would have a special character for intercommunal contact and trade. The Chambers of Commerce and Industry of both sides would assist the United Nations administration in the Area in developing and implementing inter-communal trade for the benefit of both communities. In addition, organizations of both communities selected by the United Nations would assist the United Nations administration in the Area in developing and implementing inter-communal contact. Greek Cypriots and Turkish Cypriots would be able to enter the Area freely and without any formality. They could engage in commercial activities, including the sale of products, produce and services brought there from their respective sides. Those who wished to establish commercial enterprises in the Area and who do not own property in the Area would be provided premises on the basis of long-term leasing and the construction of new premises. The Chambers of Commerce and Industry of the two sides would together identify, develop and promote joint ventures between Greek Cypriots and Turkish Cypriots. Arrangements would be made to facilitate the financing of such projects through loans, loan guarantees, etc. The unhindered travel of foreign visitors provided for in the arrangements concerning Nicosia International Airport (see paragraph 43 of the present report) could be exercised through Varosha. Foreign visitors in the south would be able to travel unhindered from the southern part of the island to the northern part of the island through the Area. The laws to be applied in the Area would be those that were in force in Cyprus on 1 December 1963. Cases involving persons from both communities would be heard jointly by a Greek Cypriot and a Turkish Cypriot magistrate designated by their respective communities. Pending a mutually agreed overall settlement, the above arrangements could not be amended in any way without the consent of both sides and of the United Nations administration in the Area. Either side could address to the United Nations any complaint about the implementation

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•

•

of the above arrangements by the other side. The United Nations administration in the Area would consider the matter without delay. The two sides would be obligated to implement the recommendations of the United Nations promptly and in goodwill. These arrangements would be implemented without prejudice to the respective positions of both sides on an overall settlement of the Cyprus problem. Nicosia International Airport (see paragraph 43 below).

43. In detail, the proposal provides for the following: •

•

•

• •

• • • •

•

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Nicosia International Airport would be opened for civilian passenger and cargo traffic under the administration of the United Nations in cooperation with the International Civil Aviation Organization (ICAO) as from an agreed date and pending a mutually agreed solution to the Cyprus problem. Traffic rights at the Airport would be limited to foreign airlines which have traffic rights in Cyprus. Such rights would be enjoyed by airlines registered in the Republic of Turkey. Landing charges for the Airport would be arranged by the United Nations/ICAO in such a way as not to affect adversely existing agreements with other airports in Cyprus. There would be free access to and from the airport from both sides. Foreign visitors who entered Cyprus through Nicosia International Airport could, during their stay on the island, travel unhindered between the two sides. In administering and operating the Airport, the United Nations/ICAO could enlist the advice and assistance of both sides. The United Nations/ICAO would be responsible for the security of the Airport. The costs of making the Airport operational and of its administration, operation and security would be borne locally in an agreed manner. Both sides would commit themselves to take no action of any kind to prevent or adversely influence the free movement of people or goods through Nicosia International Airport. In this connection, either side could address to the United Nations administration of the Airport any complaint concerning the implementation of this commitment. The United Nations Airport administration would consider the matter without delay and the two sides would commit themselves to implement promptly and in goodwill the recommendations that administration might make in the matter. These arrangements would be implemented without prejudice to the respective positions of both sides on an overall settlement of the Cyprus problem.

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Representatives of the two communities will meet periodically to promote additional confidence-building measures for implementation by both sides.

31. Proposal of Greek-Cypriot side on the demilitarization of Cyprus Letter from President Clerides to the UN Secretary-General, Dr Boutros Boutros-Ghali, 17 December 1993 Your Excellency, I am writing to inform you that I have paid special attention and gave deep consideration to paragraph 102 of your report to the Security Council of the 22nd of November 1993, document (S/26777), in which you point out that ‘there is every justification for demanding that the two sides on the island, as well as Turkey and Greece, work more effectively for a negotiated settlement, in return for the great efforts of the international community.’ During my deliberations regarding what could be done by my Government to contribute effectively towards a negotiated settlement I took into consideration, inter alia, the paragraph 101 of your report which states ‘the status quo, which the Security Council has deemed to be unacceptable, was established through the use of military force and is sustained by military strength,’ and paragraph 105 which states ‘I would urge once again that as a first step towards the withdrawal of non-Cypriot troops envisaged in the Set of Ideas, the Turkish forces on the island be reduced to their level of 1982 and this be reciprocated by a suspension of weapons acquisition programmes on the Greek Cypriot side.’ There is no doubt that the massive presence of Turkish military forces in the occupied part of Cyprus creates serious anxieties and mistrust amongst the Greek Cypriot Community regarding Turkish intentions. It also imposes on the Government of the Republic the need to increase the defensive capabilities of the country by purchasing arms. Further it makes it necessary to request military help from Greece and to include Cyprus in the Greek defensive plans. There are also indications that the above preparations, though entirely defensive in their nature, are misinterpreted and cause anxiety and mistrust within the Turkish Cypriot Community regarding Greek intentions. After careful consideration, I came to the conclusion that in order to break the counterproductive climate of fear and mistrust and thus enhance the prospects of a negotiated settlement the Government of the Republic should take the following steps: a.

Repeal the National Guard Law, disband the National Guard and hand all

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Part I: Constitutional Issues its arms and military equipment to the custody of the United Nations Peace-Keeping Force. b. Undertake to maintain the Police Force of the Republic at its present numerical strength armed only with light personal weapons. c. Undertake the total cost of a substantially numerically increased United Nations Peace-Keeping Force. d. Agree that the United Nations Peace-Keeping Force will have the right of inspection to ascertain compliance with the above. e. Agree that the National Guard armour cars, armour personnel vehicles and tanks, which will be handed to the United Nations Peace-Keeping Force for custody, can be used by the United Nations Peace-Keeping Force to patrol the buffer zone and to prevent intrusions in it. f. Deposit in United Nations account all money saved from disbanding the National Guard and from stopping the purchase of arms, after deducting the cost of the United Nations Peace-Keeping Force, to be used after the solution of the problem for the benefit of both Communities. The above offer is made provided the Turkish side agrees also that parallel to the above the Turkish Forces are withdrawn from Cyprus, the Turkish Cypriot armed forces disband and hand their weapons and military equipment to the custody of the United Nations Peace-Keeping Force. I wish also to reaffirm what I have told Mr Feissel before leaving for New York, i.e. that I am ready to discuss the modalities regarding the implementation of the confidence-building measures and of course the solution of the Cyprus problem. I hope, Your Excellency, the Turkish side will respond positively to my proposal, otherwise the only logical inference to be drawn will be that the massive presence of Turkish forces is not for the alleged safety of the Turkish Cypriot Community, but for the perpetuation of the status quo which, as stated in your report, has been created by military force and is sustained by military strength and which the Security Council has deemed unacceptable. Such an inference will impose on my Government the need to substantially increase the defensive capabilities of the Republic and to enter into arrangements with Greece regarding a common defensive plan.

32. Missile dispute threatens Cyprus truce (1997–98) After the end of the cold war and the collapse of the officially atheist communist system in the Soviet Union, relations between Russia and Cyprus – both countries follow the Orthodox Christian faith – gained extra momentum. Russia

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In Search of a Solution once again attempted to assume a leadership role of the Orthodox world and wanted to maintain or spread its influence in the Balkans and the east Mediterranean. These developments coincided with a deterioration in Turco– Russian relations. Throughout the 1990s Turkey aimed to spread its influence in the Caucasus and Central Asia – areas that Russia considers to be within its own sphere of influence. In January 1997, the Cyprus government announced the purchase of S-300 missiles from Russia. Shortly after the S-300PMU-1 deal was concluded, both parties said that the missiles would not be delivered for 16 months, thus allowing time for negotiations on the island’s governance and demilitarization. Despite the efforts of UN Secretary-General Kofi Annan and US special envoy to Cyprus Ambassador Richard Holbrooke, among others, talks between Greek and Turkish Cypriots were unsuccessful. In turn, Turkey negotiated with Belgium and the Netherlands to buy second-hand Hawk ground-to-air missiles, to be modernised by the French group Thomson-CSF. Moreover, Mrs Çiller – the then Turkish Prime Minister – threatened to launch a pre-emptive strike if these offensive weapons were deployed. The Russian-made S-300PMU-1 system has anti-aircraft as well as theatre missile defence (TMD) capabilities. Although defensive in nature, the deployment of a such a system may intensify threats to international peace and security by upsetting a regional balance of military forces, undercutting other states’ deterrent capabilities, or by shielding forces that can be used for offensive attacks. TMD deployment may therefore spur an unstable offence–defence arms race for relative advantage, undermine the prospects for arms control, and exacerbate political strife between rival states. Deployment of S-300PMU-1 missile batteries by the Greek Cypriots could not alter the fundamental balance of military power on Cyprus, as Turkey would still retain military preponderance. However, even though it has no direct offensive capability, the system could have seriously degraded Turkey’s longstanding air superiority in the region. This was the main reason why Turkey issued the aforesaid threat. Throughout 1997 and 1998, the political situation appeared to be very bad and a war in the region seemed likely. The bi-communal peace talks in summer 1997 also failed. Greece declared that she would come to Cyprus’ help if the latter were ever attacked by Turkey. The Turkish armed forces shot down a Russian helicopter situated in bases in neighbouring Georgia. Although the Turkish government denied any deliberate intention in the attack and subsequently claimed the event to be an ‘accident’, most observers interpreted this as a ‘strong message’ sent from Turkey to Russia. Following 29 December 1998 consultations with Greek Prime Minister Costas Simitis and the Cypriot National Council, Cypriot President Glavcos Clerides announced that he had decided against deploying the Russian-built S-300PMU-1 surface-to-air missile [SAM] system on Cyprus. Clerides said that after discussing the issue with the Cypriot National Council, ‘the positions of the parties were clear. It was also clear that there was no unanimity. As a result of this, as President of the Cyprus Republic, being fully aware of the responsibilities I am shouldering and being fully conscious of the

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Part I: Constitutional Issues critical times our national issue is passing through, I reached the decision not to deploy the missiles in Cyprus and I agreed to negotiate with the Russian Government for their possible deployment in Crete.’ According to many, his decision was the result of ‘giving in to pressure, threats and blackmail’.

33. Documents given by Denktash to the UN Secretary-General during their meeting in Geneva, 28 March 1998 The Turkish side seeks to change the basic parameters and principles of a final settlement. The official stance that favoured federalism is abandoned in favour of confederalism based on the existence of two sovereign and equal states. Basic parameters and principles of a final settlement in Cyprus The starting point will be the acknowledgment of the existence of two sovereign and equal states. The inhuman embargoes imposed on the Turkish Cypriot people should be removed. The objective will be to establish a new relationship based on mutual respect and cooperation that will enable the two peoples to coexist in peace and harmony. Settlement will be freely negotiated by the two states under the mission of the good offices of the UN Secretary-General. A working relationship should be established between the two states which will enable them to resolve certain basic matters, specifically the final settlement of reciprocal property claims, security issues and delineation of borders. This will bring about a new platform which will enable the two peoples and their respective states to coexist peacefully without claims against one another. This will also create an environment in which the two sides can work out mutual cooperation and coordination on which a common future can be built. The Guarantee system of 1960 shall continue. EU membership of Cyprus will be entertained after a settlement and simultaneously with Turkey. The settlement will maintain the internal balance between the two peoples in the island and the external between Turkey and Greece in the Eastern Mediterranean. Talking Points I come to this meeting, Mr Secretary-General, with the hope and expectation that we will benefit from your wisdom, creativity and vast experience to rethink the 35 year old Cyprus conflict. We firmly believe that the UN offers 278

In Search of a Solution the best venue through which the Cyprus question can be most successfully handled. We are of the view that any resolution in Cyprus can only be based on the existing realities and the equal status of the two peoples. The time has come to recognize the fact that the Greek Cypriot administration does not have the legal and moral right to determine the future of the whole island and of the Turkish Cypriot people. It is, thus, necessary for the success of our efforts to adopt a new approach to the Cyprus question which will reflect these facts. The lack of political parity and symmetry between the two sides in Cyprus is preventing progress. I wish to share with you, candidly, our assessment that the role of the UN in Cyprus, both in peacekeeping and the SecretaryGeneral’s good offices mission has, so far, unfortunately, helped and consolidated this political disparity and asymmetry. We believe that this new approach will greatly facilitate the UN efforts for a lasting settlement. The intervention of the European Union which was instigated by Greece and the Greek Cypriot side, reached a climax at the Luxembourg Summit held in December 1997, and introduced elements which diametrically contradict the parameters of the UN process, thus further complicating the already complex Cyprus conflict. Furthermore, the establishment of a unified military front between Greece and the Greek Cypriot administration including the opening of the Paphos airbase and the prospective deployment of sophisticated S-300 missiles, within the context of the so-called Joint Military Doctrine, promise nothing but further crisis. In shaping our future, the basic requirement is realism. In view of the prevailing realities, the two states should work out an arrangement which would enable them to resolve, in the first instance, the following three major issues in order to coexist peacefully in the island and promote trust and cooperation between the two peoples: settlement of reciprocal property claims, security, delineation of borders. We have come to the conclusion that the acknowledgment of the existence of two fully functioning democratic states in the island, each with its own people, territory and effective government will open the way to the resolution of these three issues and the development of a new and cooperative relationship between the two states for the achievement of a final settlement. Furthermore, the inhuman embargoes imposed on the Turkish Cypriot people should be removed. I need to stress again that the present system of guarantees must continue and the final settlement must maintain the internal balance between the two peoples in the island and the external balance between Turkey and Greece in the Eastern Mediterranean. We are confident that the new platform will create a new environment in which the two sides can work towards a common future based on cooperation, mutual trust and respect.

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Part I: Constitutional Issues The primary aim should, therefore, be the immediate achievement of a working relationship between the two states so that peace, stability and mutual trust can be secured and the danger of a new conflict is averted. In my letter of 5 March 1998 to Mr Clerides, I have not only stated the foregoing but have also invited him to make together, in good faith, a new beginning on the basis of these realities. Our firm belief is that all concerned would have to adapt and realign their current position to help the process forward. In this connection, I hope you will agree that it is necessary to consider adjusting the role of UNFICYP and the good offices mission to the realities appertaining to Cyprus specially after the interventions of Greece and the European Union which have completely destroyed political parity and symmetry necessary for a solution of the conflict. This will enable us to make progress on the right track. We have taken up all these points with your Special Adviser Ambassador Diego Cordovez. I feel confident that before Your Excellency decides what action to take you will consider the foregoing in depth, in conjunction with the long suffering of my people because of the injustices and obstacles which have resulted in the continuing political disparity and asymmetry, and will make the most of this opportunity in order to urge the Greek Cypriot side to appreciate the need for a settlement, thus, enabling you to help us make progress. In conclusion, I would like to confirm that I am ready to work with Your Excellency for a Cyprus settlement and a peaceful future on the basis of these realities.

34. Basis for agreement on a comprehensive settlement of the Cyprus problem: Kofi Annan’s plan, submitted to the parties 6 on 31 March 2004 The appended Foundation Agreement has been finalized in close consultation with the two parties in Cyprus following negotiations under the auspices of the Secretary-General in which each side represented itself, and no-one else, as the political equal of the other. In accordance with the agreement of 13 February 2004, it will be submitted for approval at separate simultaneous referenda on [X] April 2004, together with the relevant appended constituent state constitution, by asking the following question: ‘Do you approve the Foundation Agreement with all its Annexes, as well as the constitution of the Greek Cypriot/Turkish Cypriot State 280

In Search of a Solution and the provisions as to the laws to be in force to bring into being a new state of affairs in which Cyprus joins the European Union united? Yes [ ] No [ ]’ The Foundation Agreement shall enter into force after confirmation by the Secretary-General of its approval at separate simultaneous referenda and the signature by Greece, Turkey and the United Kingdom of the attached Treaty on matters related to the new state of affairs in Cyprus. The parties shall take the measures listed in the appended ‘Measures to be taken during April 2004’ by the dates listed therein and, where foreseen in the appendix, commit to accepting any indispensable suggestions of the Secretary-General or his representatives in order to finalise these measures by the dates foreseen. The parties request the United Nations to check the documents appended for internal consistency and errors and make any technical corrections. Should the Foundation Agreement not be approved at the separate simultaneous referenda, or any guarantor fail to sign the Treaty on matters related to the new state of affairs in Cyprus no later than [Y] April 2004, it shall be null and void ab initio, and this Comprehensive Settlement of the Cyprus Problem, as well as the submission to referenda, shall have no legal effect. Done at [ ] this [ ] day of [ ] 2004 in four copies in the English language. Signature For the Greek Cypriot side

Signature For the Turkish Cypriot side

Statement by Greece, Turkey and the United Kingdom The Hellenic Republic, the Republic of Turkey, and the United Kingdom of Great Britain and Northern Ireland have agreed that: i ii

the appended Foundation Agreement shall be submitted to separate simultaneous referenda by the two Cypriot parties; and upon approval of the Foundation Agreement at separate simultaneous referenda and completion of their internal ratification procedure, they – together with the United Cyprus Republic – shall, on [Y] April 2004, sign into force the appended Treaty on matters related to the new state of affairs in Cyprus, which shall be registered as an international treaty in accordance with Article 102 of the Charter of the United Nations.

Should the Foundation Agreement not be approved at the separate simultaneous referenda, or any of the guarantor powers fail to sign the Treaty by [Y] April, this Statement shall be null and void and have no legal effect. Done at [ ] this [ ] day of [ ] 2004 in four copies in the English language. 281

Part I: Constitutional Issues Signature Hellenic Republic

Signature United Kingdom of Great Britain and Northern Ireland

Signature Republic of Turkey

Statement by the European Commission DRAFT LANGUAGE The European Commission is committed to submitting the attached draft Act of Adaptation of the terms of accession of the United Cyprus Republic to the European Union for consideration by the Council of the European Union prior to [X] April, and for its adoption after successful outcome of the separate simultaneous referenda and before 1 May 2004. Signature For the European Commission Statement by the Secretary-General of the United Nations The Secretary-General of the United Nations certifies to the authenticity of the attachments to this Comprehensive Settlement, and, by agreement of the Cypriot parties and the guarantors, shall submit to the Security Council the attached ‘Matters to be Submitted to the United Nations Security Council for Decision’. Kofi A. Annan Secretary-General of the United Nations Witnesses Appendices: A. Foundation Agreement B. Constituent State Constitutions C. Treaty on matters related to the new state of affairs in Cyprus D. Draft Act of Adaptation of the terms of accession of the United Cyprus Republic to the European Union E. Matters to be Submitted to the United Nations Security Council for Decision F. Measures to be taken during April 2004 FOUNDATION AGREEMENT Table of Contents Main articles Annex I: Constitution of the United Cyprus Republic Annex VI: Territorial Arrangements Annex VII: Treatment of Property affected by events since 1963 282

In Search of a Solution Annex VIII: Reconciliation Commission Annex IX: Coming into being of the new state of affairs C. Treaty between Cyprus, Greece, Turkey and the United Kingdom related to the new state of affairs in Cyprus D. Draft act of adaptation to the terms of accession of the United Cyprus Republic to the European Union E. Matters to be submitted to the United Nations Security Council for Decision Main Articles Affirming that Cyprus is our common home and recalling that we were co-founders of the Republic established in 1960 ii. Resolved that the tragic events of the past shall never be repeated and renouncing forever the threat or the use of force, or any domination by or of either side iii. Acknowledging each other’s distinct identity and integrity and that our relationship is not one of majority and minority but of political equality where neither side may claim authority or jurisdiction over the other iv. Deciding to renew our partnership on that basis and determined that this new bi-zonal partnership shall ensure a common future in friendship, peace, security and prosperity in an independent and united Cyprus v. Underlining our commitment to international law and the principles and purposes of the United Nations vi Committed to respecting democratic principles, individual human rights and fundamental freedoms, as well as each other’s cultural, religious, political, social and linguistic identity vii. Determined to maintain special ties of friendship with, and to respect the balance between, Greece and Turkey, within a peaceful environment in the Eastern Mediterranean viii. Looking forward to joining the European Union, and to the day when Turkey does likewise i.

We, the Greek Cypriots and the Turkish Cypriots, exercising our inherent constitutive power, by our free and democratic, separately expressed common will adopt this Foundation Agreement. The new state of affairs 1. This Agreement establishes a new state of affairs in Cyprus. 2. The treaties listed in this Agreement bind Cyprus and the attached legislation shall apply upon entry into force of this Agreement. 3. The Treaty of Establishment, the Treaty of Guarantee, and the Treaty of Alliance remain in force and shall apply mutatis mutandis to the new state of affairs. Upon entry into force of this Agreement, Cyprus shall sign a Treaty with Greece, Turkey and the United Kingdom on matters related

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Part I: Constitutional Issues to the new state of affairs in Cyprus, along with additional protocols to the Treaties of Establishment, Guarantee and Alliance. 4. Cyprus shall be a member of the European Union. 5. Cyprus shall maintain special ties of friendship with Greece and Turkey, respecting the balance in Cyprus established by the Treaty of Guarantee and the Treaty of Alliance and this Agreement, and as a European Union member state shall support the accession of Turkey to the Union. 6. Any unilateral change to the state of affairs established by this Agreement, in particular union of Cyprus in whole or in part with any other country or any form of partition or secession, is prohibited. Nothing in this Agreement shall in any way be construed as contravening this prohibition. The United Cyprus Republic, its federal government, and its constituent states 7. The status and relationship of the United Cyprus Republic, its federal government, and its constituent states, is modelled on the status and relationship of Switzerland, its federal government, and its cantons. Accordingly: (a) The United Cyprus Republic is an independent state in the form of an indissoluble partnership, with a federal government and two equal constituent states, the Greek Cypriot State and the Turkish Cypriot State. Cyprus is a member of the United Nations and has a single international legal personality and sovereignty. The United Cyprus Republic is organised under its Constitution in accordance with the basic principles of rule of law, democracy, representative republican government, political equality, bi-zonality, and the equal status of the constituent states. (b) The federal government sovereignly exercises the powers specified in the Constitution, which shall ensure that Cyprus can speak and act with one voice internationally and in the European Union, fulfil its obligations as a European Union member state, and protect its integrity, borders, resources and ancient heritage. (c) The constituent states are of equal status. Within the limits of the Constitution, they sovereignly exercise all powers not vested by the Constitution in the federal government, organising themselves freely under their own Constitutions. 8. The constituent states shall cooperate and co-ordinate with each other and with the federal government, including through Cooperation Agreements, as well as through Constitutional Laws approved by the federal Parliament and both constituent state legislatures. In particular, the constituent states shall participate in the formulation and implementation of policy in external relations and European Union affairs on matters within their sphere of competence, in accordance with Cooper284

In Search of a Solution ation Agreements modelled on the Belgian example. The constituent states may have commercial and cultural relations with the outside world in conformity with the Constitution. 9. The federal government and the constituent states shall fully respect and not infringe upon the powers and functions of each other. There shall be no hierarchy between federal and constituent state laws. Any act in contravention of the Constitution shall be null and void. 10. The Constitution of the United Cyprus Republic may be amended by separate majority of the voters of each constituent state in accordance with the specific provisions of the Constitution. Citizenship, Residency and Identity 11. There is a single Cypriot citizenship. Majority federal law shall regulate eligibility for Cypriot citizenship. 12. All Cypriot citizens shall also enjoy internal constituent state citizenship status. This status shall complement and not replace Cypriot citizenship. 13. Other than in elections of Senators, which shall be elected by Greek Cypriots and Turkish Cypriots separately, political rights at the federal level shall be exercised based on internal constituent state citizenship status. Political rights at the constituent state and local level shall be exercised at the place of permanent residency. 14. To preserve its identity, Cyprus may adopt specified non-discriminatory safeguard measures in conformity with the acquis communautaire in respect of immigration of Greek and Turkish nationals. 15. In addition, for a transitional period of 19 years or until Turkey’s accession to the European Union, whichever is earlier, Cyprus may limit the right of Greek nationals to reside in Cyprus if their number has reached 5% of the number of resident Cypriot citizens holding Greek Cypriot internal constituent state citizenship status, or the right of Turkish nationals to reside in Cyprus if their number has reached 5% of the number of resident Cypriot citizens holding Turkish Cypriot internal constituent state citizenship status. 16. To preserve its identity, a constituent state may adopt specified non-discriminatory safeguard measures in conformity with the acquis communautaire in respect of the establishment of residence by persons not holding its internal constituent state citizenship status. 17. In addition, for a transitional period a constituent state may, pursuant to Constitutional Law, limit the establishment of residence by persons hailing from the other constituent state. To this effect, it may establish a moratorium until the end of the fifth year, after which limitations are permissible if the number of residents hailing from the other constituent state has reached 6% of the population of a village or municipality between the 6th and 9th years and 12% between the 10th and 14th years and 18% of the population of the relevant constituent state thereafter,

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Part I: Constitutional Issues until the 19th year or Turkey’s accession to the European Union, whichever is earlier. After the second year, no such limitations shall apply to former inhabitants over the age of 65 accompanied by a spouse or sibling, nor to former inhabitants of specified villages. Fundamental rights and liberties 18. Respect for human rights and fundamental freedoms shall be enshrined in the Constitution. There shall be no discrimination against any person on the basis of his or her gender, ethnic or religious identity, or internal constituent state citizenship status. Freedom of movement and freedom of residence may be limited only where expressly provided for in this Agreement. 19. Greek Cypriots and Turkish Cypriots living in specified villages in the other constituent state shall enjoy cultural, religious and educational rights and shall be represented in the constituent state legislature. 20. The rights of religious and other minorities, namely the Maronite, the Latin, the Armenian and the Roma, shall be safeguarded in accordance with international standards, and shall include cultural, religious and educational rights as well as representation in federal Parliament and constituent state legislatures. The federal government 21. The federal Parliament composed of two chambers, the Senate and the Chamber of Deputies, shall exercise the legislative power: (a) Each Chamber shall have 48 members. The Senate shall be composed of an equal number of Greek Cypriots and Turkish Cypriots. The Chamber of Deputies shall be composed in proportion to persons holding internal constituent state citizenship status of each constituent state, provided that each constituent state shall be attributed no less than one-quarter of seats. (b) Decisions of Parliament shall require the approval of both Chambers by simple majority, including one quarter of voting Senators from each constituent state. For specified matters, a special majority of two-fifths of sitting Senators from each constituent state shall be required. 22. The Office of Head of State is vested in the Presidential Council, which shall exercise the executive power: (a) The Presidential Council shall be elected on a single list by special majority in the Senate and approved by majority in the Chamber of Deputies for a five-year term. It shall comprise six voting members, and additional non-voting members should Parliament so decide. The composition of the Presidential Council shall be proportional to the number of persons holding the internal constituent state citizenship

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(b)

(c)

(d)

(e)

status of each constituent state, though no less than one-third of the voting members and one-third of any non-voting members of the Council must come from each constituent state. The Presidential Council shall strive to reach decisions by consensus. Where it fails to reach consensus, it shall, unless otherwise specified, take decisions by simple majority of members present and voting, provided this comprises at least one member from each constituent state. Notwithstanding voting rights, the members of the Council shall be equal. The Council shall decide on the attribution of Departments. … The heads of the Departments of Foreign Affairs and European Union Affairs shall not come from the same constituent state. Unless the Presidential Council decides otherwise, it shall elect two of its members not hailing from the same constituent state to rotate every twenty months in the offices of President and Vice-President of the Council. The member hailing from the more populous constituent state shall be the first President in each term. The President, and in his absence or temporary incapacity, the Vice-President, shall represent the Council as Head of State and Head of Government. The Vice-President shall accompany the President to meetings of the European Council. The President and Vice-President shall not enjoy a casting vote or otherwise increased powers within the Council. The executive heads of the constituent states shall be invited to participate without a vote in all meetings of the Council in the first ten years after entry into force of the Agreement, and thereafter on a periodical basis.

23. The Central Bank of Cyprus, the Office of the Attorney-General and the Office of the Auditor-General shall be independent. The Supreme Court 24. The Supreme Court shall uphold the Constitution and ensure its full respect. 25. It shall comprise an equal number of judges from each constituent state, and three non-Cypriot judges until otherwise provided by law. 26. The Supreme Court shall, inter alia, resolve disputes between the constituent states or between one or both of them and the federal government, and resolve on an interim basis deadlocks within federal institutions if this is indispensable to the proper functioning of the federal government. Transitional federal and constituent state institutions 27. The federal institutions shall be in place upon entry into force of the Foundation Agreement, and shall evolve in their operation during transitional periods. 28. The transitional constituent state legislatures, executives and judiciaries 287

Part I: Constitutional Issues shall be in place upon entry into force in accordance with this agreement. At the federal level, the office of Head of State shall be vested in a CoPresidency. The federal government shall be composed of a Council of Ministers of six members (three Greek Cypriots, three Turkish Cypriots). Delegates from each constituent state parliament shall sit in the transitional federal Parliament (24 Greek Cypriots, 24 Turkish Cypriots) and in the European Parliament (four Greek Cypriots, two Turkish Cypriots). 29. There shall be general elections at constituent, federal and European Union level on 13 June 2004, after which the constituent state and federal governments shall operate regularly, though the office of President and Vice-President at the federal level shall rotate every 10 months during the first term of the Presidential Council. 30. The Supreme Court shall assume its functions upon entry into force of the Foundation Agreement. Demilitarisation 31. Bearing in mind that: (a) The Treaty of Guarantee, in applying mutatis mutandis to the new state of affairs established in this Agreement and the Constitution, shall cover, in addition to the independence, territorial integrity, security and constitutional order of the United Cyprus Republic, the territorial integrity, security and constitutional order of the constituent states; (b) Greek and Turkish contingents shall be permitted to be stationed under the Treaty of Alliance in the Greek Cypriot State and the Turkish Cypriot State respectively as follows: i ii

each contingent not to exceed 6000 all ranks, until 2011; each contingent not to exceed 3000 all ranks thereafter until 2018 or the European Union accession of Turkey, whichever is sooner and; iii the Greek contingent not to exceed 950 all ranks and the Turkish contingent not to exceed 650 all ranks thereafter, subject to five-yearly review with the objective of total withdrawal; (c) Greek and Turkish forces and armaments shall be redeployed to agreed locations and adjusted to agreed levels, and any forces and armaments in excess of agreed levels shall be withdrawn; (d) There shall be a United Nations peacekeeping operation to monitor the implementation of this Agreement and use its best efforts to promote compliance with it and contribute to the maintenance of a secure environment, to remain as long as the federal government, with the concurrence of both constituent states, does not decide otherwise; (e) The supply of arms to Cyprus shall be prohibited in a manner that is legally binding on both importers and exporters; and

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In Search of a Solution (f) A Monitoring Committee composed of representatives of the guarantor powers, the federal government, and the constituent states, and chaired by the United Nations, shall monitor the implementation of this Agreement. Cyprus shall be demilitarised, and all Greek Cypriot and Turkish Cypriot forces, including reserve units, shall be dissolved, and their arms removed from the island, in phases synchronized with the redeployment and adjustment of Greek and Turkish forces. 32. There shall be no paramilitary or reserve forces or military or paramilitary training of citizens. All weapons except licensed sporting guns shall be prohibited. 33. The constituent states shall prohibit violence and the incitement to violence against the United Cyprus Republic, the federal government, the constituent states, or the guarantor powers. 34. Cyprus shall not put its territory at the disposal of international military operations other than with the consent of both constituent states; until the accession of Turkey to the European Union, the consent of Greece and Turkey shall also be required. 35. The federal government and the constituent states shall cooperate with the United Nations operation. The cost of the operation to the United Nations shall be borne by the United Cyprus Republic. 36. These provisions do not prejudice the provisions of the Treaty of Establishment, the Treaty of Guarantee, the Treaty of Alliance, the mandate of a United Nations peacekeeping operation and the provisions of the Constitution on federal and constituent state police and the Joint Investigation Agency. Constituent state boundaries and territorial adjustment 37. The territorial boundaries of the constituent states shall be as depicted in 7 the map which forms part of this Agreement. 38. Areas subject to territorial adjustment which are legally part of the Greek Cypriot State upon entry into force of this Agreement, shall be administered during an interim period by the Turkish Cypriot State. Administration shall be transferred under the supervision of the United Nations to the Greek Cypriot State in six phases over a 42-month period, beginning 104 days after entry into force of this Agreement with the transfer of administration of largely uninhabited areas contiguous with the remainder of the Greek Cypriot State. United Nations supervision of activities related to territorial transfer shall be enhanced in the last months before handover of specified areas as outlined in the Agreement. 39. Special arrangements shall safeguard the rights and interests of current inhabitants of areas subject to territorial adjustment, and provide for

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Part I: Constitutional Issues orderly relocation to adequate alternative accommodation in appropriate locations where adequate livelihoods may be earned. Property [To be completed in accordance with the relevant provisions of Annex VII.] Reconciliation Commission 40. An independent, impartial Reconciliation Commission shall promote understanding, tolerance and mutual respect between Greek Cypriots and Turkish Cypriots. 41. The Commission shall be composed of men and women, in equal numbers from each constituent state, as well as at least one non-Cypriot member, which the Secretary-General of the United Nations is invited to appoint in consultation with the federal government and the constituent states. Past acts 42. Any act, whether of a legislative, executive or judicial nature, by any 8 authority in Cyprus whatsoever, prior to entry into force of this Agreement, is recognised as valid and, provided it is not inconsistent with or repugnant to any other provision of this Agreement or 9 international law, its effect shall continue following entry into force of 10 this Agreement. No one shall be able to contest the validity of such acts by reason of what occurred prior to entry into force of this Agreement. 43. Any claims for liability or compensation arising from acts prior to this Agreement shall, insofar as they are not otherwise regulated by the provisions of this Agreement, be dealt with by the constituent state from which the claimant hails. Entry into force and implementation 44. This Agreement shall enter into force upon approval by each side at separate simultaneous referenda conducted in accordance with the Agreement and the signature by Greece, Turkey and the United Kingdom of the Treaty on matters related to the new state of affairs in Cyprus. 45. Upon entry into force of this Agreement and the Treaty related to the new state of affairs in Cyprus, there shall be ceremonies throughout the island at which all flags other than those prescribed in the Constitution are lowered, the flags of the United Cyprus Republic and of the constituent states raised in accordance with the Constitution and relevant legislation, and the anthems of the United Cyprus Republic and of the constituent states played. 46. Upon entry into force of this Agreement, the Co-Presidents shall inform the United Nations that henceforth the membership rights and obli-

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In Search of a Solution gations of Cyprus in the United Nations shall be exercised in accordance with the new state of affairs. The agreed flag of Cyprus shall be raised at United Nations Headquarters. 47. This Agreement shall be implemented in accordance with the binding timeframes laid down in the various parts of the Agreement and reflected in the calendar of implementation. Annexes The above main articles are reflected in detailed legal language in the Annexes which form an integral part of this Agreement. Constitution of the United Cyprus Republic Part I: Basic Articles Part II: General Provisions Part III: Fundamental Rights and Liberties Part IV: The Federal Government and the Constituent States Part V: Federal Institutions Section A: The Legislature Section B: The Executive Section C: Independent Officers and Institutions Section D: The Judiciary Part VI: Amendments of this Constitution Part VII: Transitional Provisions Attachment 1: Map of United Cyprus Republic and its constituent states Attachment 2: Flag of the United Cyprus Republic Attachment 3: Anthem of the United Cyprus Republic Basic Articles The United Cyprus Republic 48. The United Cyprus Republic is an independent and sovereign state with a single international legal personality and a federal government and consists of two constituent states, namely the Greek Cypriot State and the Turkish Cypriot State. 49. The independence, territorial integrity, security, and constitutional order of the United Cyprus Republic shall be safeguarded and respected by all. 50. Union of Cyprus in whole or in part with any other country, any form of partition or secession, and any other unilateral change to the state of affairs established by the Foundation Agreement and this Constitution is prohibited. 51. The United Cyprus Republic shall be organised under this Constitution in accordance with the basic principles of rule of law, democracy, representative republican government, political equality of Greek Cypriots and Turkish Cypriots, bi-zonality and the equal status of the constituent states. 291

Part I: Constitutional Issues The constituent states 52. The constituent states are of equal status. Each constituent state exercises its authority within the limits of this Constitution and its territorial boundaries as set out in the maps attached to this Constitution. 53. The identity, territorial integrity, security and constitutional order of the constituent states shall be safeguarded and respected by all. 54. The constituent states shall organise themselves freely within the limits of this Constitution and in conformity with the basic principles of rule of law, democracy, and representative republican government under their own Constitutions. General Provisions Constitution as supreme law 55. This Constitution, having been democratically adopted by the Greek Cypriots and the Turkish Cypriots through their separately expressed common will, is the supreme law of the land and is binding on all federal authorities and the constituent states. Any act by the federal government or either constituent state in contravention of this Constitution shall be null and void. 56. The federal government shall fully respect and not infringe upon the powers and functions of the constituent states under this Constitution. Each constituent state shall fully respect and not infringe upon the powers and functions of the federal government or the other constituent state under this Constitution. There shall be no hierarchy between 11 federal and constituent state laws. 57. The Supreme Court shall uphold this Constitution and ensure its full respect by other federal organs and the constituent states. Rule of law 1. The law is the basis of and limitation for all acts of government at all levels. 2. All acts of government at all levels shall conform with the principles of public interest, proportionality and good faith. 3. The federal government as well as the constituent states shall respect international law, including all treaties binding upon the United Cyprus Republic, which shall prevail over any federal or constituent state. Secular nature of the United Cyprus Republic 4. The United Cyprus Republic, its federal government and its constituent states are secular. 5. Religious functionaries shall not hold elected or appointed political or public office.

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In Search of a Solution Demilitarisation of the United Cyprus Republic 6. The United Cyprus Republic and its constituent states shall be demilitarised. There shall be no paramilitary or reserve forces or military or paramilitary training of citizens. 7. Cyprus shall not put its territory at the disposal of international military operations with the consent of the governments of both constituent states. 8. All weapons, except licensed sporting guns, shall be prohibited and the supply of weapons other than in accordance with licensing law shall be an offence carrying a mandatory sentence of a minimum of three years in prison. 9. The constituent states shall prohibit by law violence and the incitement to violence against the United Cyprus Republic, the federal government, the constituent states, or the guarantor powers and shall not tolerate such acts by persons, groups or organisations operating within their boundaries. 10. The provisions of this Article are without prejudice to the provisions of the Treaty of Establishment, the Treaty of Guarantee, the Treaty of Alliance, the mandate of a UN peacekeeping operation in Cyprus and the provisions of this Constitution on federal and constituent state police and the Joint Investigation Agency. Seat of the federal government The seat of the federal government shall be greater Nicosia. Flags and anthems 11. The flag of the United Cyprus Republic shall be as attached to this Constitution. It is one and a half times as long as it is high. It consists of five horizontal stripes of unequal width: 4

(a) the top stripe is blue (Pantone 2728 C or equivalent) and is /20th of the height of the flag; 1 (b) the second stripe is white and /20th of the height of the flag; 10 (c) the middle stripe is yellow (Pantone 123 C or equivalent) and is /20 of the height of the flag; 1 (d) the fourth stripe is white and is /20th of the height of the flag; 4 (e) the bottom strip is red (Pantone 485 C or equivalent) and is /20th of the height of the flag. This flag shall be flown alone or together with the flag of the European Union on federal government buildings. 12. The anthem of the United Cyprus Republic shall be as attached to this Constitution. 13. The constituent states shall have their own anthems and flags. The constituent state flag shall be flown on constituent state government buildings, along with and in the same manner as the flag of the United Cyprus Republic and, if constituent state law so provides, that of the

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Part I: Constitutional Issues European Union. No other flags shall be flown on constituent state 12 government buildings or public property. The official languages and promulgation of official acts 14. The official languages of the United Cyprus Republic are Greek and Turkish. The use of English for official purposes shall be regulated by law. 15. Legislative, executive, administrative and judicial acts and documents of the federal government shall be drawn up in all official languages and shall, unless otherwise provided, be promulgated by publication in the official Gazette of the United Cyprus Republic in all official languages. 16. All persons shall have the right to address the federal authorities in any of the official languages and to be addressed in that same language. 17. The official languages of the United Cyprus Republic shall be taught mandatorily to all secondary school students. Fundamental Rights and Liberties Fundamental rights In accordance with Article 4 (3) of this Constitution, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols which are in force for the United Cyprus Republic and the United Nations Covenant on Civil and Political Rights shall be an integral part of this Constitution, as per the Catalogue of Human Rights and Fundamental Freedoms in Attachment 5. The rights of religious and other minorities, namely the Maronite, the Latin, the Armenian and the Roma, shall be safeguarded. The federal government and the constituent states shall, within their respective spheres of competence, afford minorities the status and rights foreseen in the European Framework Convention for the Protection of National Minorities, in particular the right to administer their own cultural, religious and educational affairs and to be represented in the legislature. Greek Cypriots residing in the Karpas villages of Rizokarpaso/Dipkarpaz, Agialousa/Yeni Erenköy, Agia Trias/Sipahi, Melanarga/Adacay, and Turkish Cypriots residing in the Tillyria villages of Amadhies/Günebakan, Limnitis/ Yeşilyirmak, Selemani/Suleymaniye, Xerovounos/Kurutepe Karavostasi/ Gemikonagi, Agios Georgios/Madenliköy and Kokkina/Erenköy, as well as the Mesaoria villages of Pyla/Pile, Skylloura/Yilmazköy and Agios Vasilios/ Türkeli shall, within the constituent states in which these villages are situated, enjoy the right to administer their own cultural, religious and educational affairs and to be represented in the constituent state legislature and to be consulted on matters of zoning and planning regarding their villages. Residents of the village of Kormakiti shall enjoy equal treatment to long-term residents of the Turkish Cypriot State with regard to sale and purchase of properties located within the Turkish Cypriot State and the 1960 boundaries of the village of Kormakiti. 294

In Search of a Solution Citizenship 1. There is a single Cypriot citizenship. 2. All persons holding Cypriot citizenship shall also enjoy internal constituent state citizenship status as provided for by Constitutional Law. Such status is complementary to and does not replace Cypriot citizenship. Only Cypriot citizens shall enjoy internal constituent state citizenship status. 3. Where any provision of this Constitution or of the Foundation Agreement refers to the constituent state origins of a person (or where a person hails from), the criterion shall be the holding of internal constituent state citizenship status. No one may hold the internal constituent state citizenship status of both constituent states. The Federal Government and the Constituent States Competences and functions of the federal government 1. The federal government shall, in accordance with this Constitution, sovereignly exercise legislative and executive competences in the following matters: (a) external relations, including conclusion of international treaties and 13 defence policy; 14 (b) relations with the European Union; (c) Central Bank functions, including issuance of currency, monetary policy and banking regulations; (d) federal finances, including budget and all indirect taxation (including customs and excise), and federal economic and trade policy; 15 (e) natural resources, including water resources; 16 (f) Meteorology, aviation, international navigation and the continental 17 shelf and territorial waters of the United Cyprus Republic; (g) Communications (including postal, electronic and telecommunications); (h) Cypriot citizenship (including issuance of passports) and immigration (including asylum, deportation and extradition of aliens); (i) Combating terrorism, drug trafficking, money laundering and organised crime; (j) Pardons and amnesties (other than for crimes concerning only one 18 constituent state); (k) Intellectual property and weights and measures; and (l) Antiquities 2. Incidental to the above competences and to other provisions of this Constitution, the federal government shall exercise legislative and executive competences over federal administration (including public service, federal police, as well as its independent institutions and officers);

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Part I: Constitutional Issues federal elections and referenda; offences against federal laws; federal administration of justice; federal property, including public works for federal facilities and expropriation; and like matters which are clearly incidental to the specified powers of the federal government. 3. The federal government shall, as appropriate, entrust the implementation of its laws, including the collection of certain forms of taxes, to constituent state authorities. 4. Obligations of the United Cyprus Republic under international treaties shall be implemented by the federal government or constituent state authority which enjoys legislative competence in the subject matter to which the treaty pertains. 5. The federal government shall confer upon the constituent states a portion of its revenue from indirect taxation as provided for by special majority law. Competences and functions of the constituent states 1. The constituent states shall, within the limits of this Constitution, sovereignly exercise within their territorial boundaries all competences and functions not vested by this Constitution in the federal govern19 ment. 2. The constituent states shall have primary criminal jurisdiction over offences against federal laws, unless such jurisdiction is reserved for the Supreme Court of Cyprus by federal legislation. 3. The police of a constituent state shall be stationed and operate 20 exclusively within that constituent state and shall be responsible for the protection and enforcement of law and order and public safety within that constituent state, including offences against federal laws, without prejudice to the functions of the federal police and the Joint Investigation Agency. A Constitutional Law shall regulate the strength and equipment of constituent state police and a Cooperation Agreement between the federal government and the constituent states shall provide for cooperation on police matters. Cooperation and coordination 4. Where expressly provided for in this Constitution, legislative matters may be regulated in a manner binding upon the federal government and the constituent states, through Constitutional Laws. Such laws shall be approved by the federal Parliament and both constituent state legislatures in accordance with procedures set down in a Constitutional Law and shall have precedence over any other federal or constituent state laws. 5. The constituent states may conclude agreements with each other or with the federal government. Such agreements may create common organisations and institutions on matters within the competence of the parties. Such agreements shall have the same legal standing as Constitutional

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In Search of a Solution Laws, provided they have been approved by the federal Parliament and both constituent state legislatures. 6. The constituent states shall strive to coordinate or harmonise their policy and legislation, including through agreements, common standards and consultations wherever appropriate, in particular on the following matters: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

Tourism; Protection of the environment and use and conservation of energy; Fisheries and agriculture; Industry and commerce, including insurance, consumer protection, professions and professional associations; Zoning and planning, including for overland transport; Sports and education; Health, including regulation of tobacco, alcohol and drugs, and veterinary matters; Social security and labour; Family, company and criminal law; and Acceptance of validity of documents.

7. Either constituent state or any branch of the federal government may initiate the coordination or harmonisation process. 8. Agreements on such coordination or harmonisation shall be approved by the competent branch of the constituent state governments and, if federal participation is required, by the competent branch of the federal government. 9. The federal government shall support, both financially and logistically, cooperative endeavours between the constituent states or between municipalities and villages located in different constituent states. 10. The federal government and the constituent states shall accept valid documents issued by government authorities and educational, medical and other public service institutions. External relations 11. Cyprus shall maintain special ties of friendship with Greece and Turkey, respecting the balance established by the Treaty of Guarantee and the Treaty of Alliance and the Foundation Agreement, and shall by agreement on appropriate terms accord them most favoured-nation treatment to the extent that this is compatible with its obligations as a member of the European Union and under the Treaty of Establishment. 12. The constituent states shall be consulted on federal decisions on external relations that affect their competences. 21 13. The constituent states may appoint representatives on commercial and 22 cultural matters, who shall be accredited as part of diplomatic missions of Cyprus. 23 14. The constituent states may also conclude agreements on commercial 24 and cultural matters with authorities of States that have relations with

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Part I: Constitutional Issues the United Cyprus Republic, provided that such agreements do not cause prejudice to the United Cyprus Republic, the authority of the federal government, or the other constituent state, and are compatible with the European Union membership of Cyprus. 15. In the exercise of the powers conferred by paragraphs 3 and 4 of this Article, the following procedures shall be observed: (a) The constituent states shall use the channel of the federal ministry of foreign affairs for contacts at a political level with foreign governments; and (b) The constituent states may have direct contacts with constituent- or subentities or subordinate authorities of other states. In this case they shall inform the federal ministry of foreign affairs upon starting negotiations on any agreement with such authorities and continue to advise on the progress and outcome of such negotiations. 16. A Cooperation Agreement between the federal government and the constituent states on external relations shall regulate the implementation of this Article. Cyprus as a member of the European Union 1. The United Cyprus Republic shall be a member of the European Union. 2. The governments of the constituent states shall participate in the formulation of the policy of Cyprus in the European Union. 3. Cyprus shall be represented in the European Union by the federal government in its areas of competence or where a matter predominantly concerns an area of its competence. Where a matter falls predominantly or exclusively into an area of competence of the constituent states, Cyprus may be represented either by a federal government or a constituent state representative, provided the latter is able to commit Cyprus. 4. Obligations of the United Cyprus Republic arising out of European Union membership shall be implemented by the federal or constituent state authority which enjoys legislative competence for the subject 25 matter to which an obligation pertains. Where the acquis communautaire prescribes the creation of single national administrative structures, such structures and the necessary regulations will be established at federal government level. Where the acquis communautaire prescribes the creation of coordination or cooperation bodies, such bodies shall be established by Cooperation Agreements. The establishment of other administrative structures necessary for the implementation of the acquis communautaire will be decided on the basis of efficiency requirements. 5. If a constituent state fails to fulfil obligations of the United Cyprus Republic vis-à-vis the European Union within its area of competence and the United Cyprus Republic may be held responsible by the Union, the

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In Search of a Solution federal government shall, after notification of no less than 90 days (or a shorter period if indispensable according to European Union requirements), take necessary measures in lieu of the defaulting constituent state, to be in force until such time as that constituent state discharges its responsibilities. 6. Paragraphs 2–5 of this Article shall be the subject of a Cooperation Agreement between the federal government and the constituent states. 7. Any new treaty or agreement on the European Union and amendments to the treaties on which the European Union is founded or acts of accession of any applicant states to the European Union, or any agreement entered into by the European Union together with its member states, shall be ratified by Cyprus unless this is opposed by the federal Parliament and both constituent state legislatures. The President or the Vice-President of the Presidential Council shall be entitled to sign the respective instrument of ratification and thereby bind the United Cyprus Republic. No provision of this Constitution shall invalidate laws, acts or measures by the federal government or the constituent states required by the obligations of European Union membership, or prevent laws, acts or measures by the European Union, or institutions thereof, from having the force of law throughout Cyprus. Federal Institutions Section A: The Legislature Composition and election of Parliament 1. The federal Parliament shall be composed of two Chambers: the Senate and the Chamber of Deputies. 2. Each Chamber shall have 48 members, elected for five years on the basis of proportional representation. The constituent states shall serve as electoral precincts unless special majority law provides otherwise, in which case each precinct may have no less than ten seats. 3. The Senate shall be composed of an equal number of Greek Cypriot and Turkish Cypriot senators. They shall be elected on a proportional basis by the citizens of Cyprus, voting separately as Greek Cypriots and Turkish Cypriots, in accordance with the law. 4. The Chamber of Deputies shall be composed of deputies from both constituent states, with seats attributed on the basis of the number of persons holding internal constituent state citizenship status of each constituent state; provided that each constituent state shall be attributed a minimum of one-quarter of the seats. 5. The Maronite, Latin, Armenian and Roma minorities shall each be represented by no less than one deputy. Members of such minorities shall be entitled to vote for the election of such deputies irrespective of their 299

Part I: Constitutional Issues internal constituent state citizenship status. Such deputies shall be counted against the quota of the constituent state where the majority of the members of the respective minority reside. Organisation 6. The law shall regulate the time and duration of the ordinary sessions of the federal Parliament. At any time, the Presidential Council or one quarter of sitting members of either Chamber may convene Parliament for an extraordinary session. 7. Each Chamber shall elect a President and two Vice-Presidents, one from each constituent state, for a period of five years. The Presidents of the two Chambers shall not come from the same constituent state, nor shall two consecutive Presidents of either Chamber. The Vice-President who does not come from the same constituent state as the President of the relevant Chamber shall be the First Vice-President of that Chamber. 8. Each Chamber shall organise its own committees in accordance with the law. 9. Each Chamber shall require the presence of a majority of sitting members in order to take decisions. 10. The law shall regulate the obligation of members of Parliament to attend meetings and the consequences of failure to do so without authorisation. Powers 11. Parliament shall legislate and take decisions. 26 12. Parliament shall approve international treaties for ratification, except where it has delegated that power to the Presidential Council. 13. Parliament shall elect and oversee the functioning of the Presidential Council. 14. Parliament may by special majority refer to the Supreme Court allegations of impeachment regarding the members of the Presidential Council and of organs of the independent institutions, and independent officers, for grave violations of their duties or serious crimes. 15. Parliament shall adopt the federal budget. Procedure 16. Unless otherwise specified in this Constitution, decisions of Parliament need the approval of both Chambers with simple majority of members present and voting, including one-quarter of senators present and voting from each constituent state. 17. A special majority comprising at least two-fifths of sitting senators from each constituent state, in addition to a simple majority of deputies present and voting, shall be required for: (a) Ratification of international agreements on matters which fall within the 27 legislative competence of the constituent states; 300

In Search of a Solution (b) Ratification of treaties and adoption of laws and regulations concerning the airspace, continental shelf and territorial waters of the United Cyprus Republic, including the exclusive economic zone and the contiguous zone; (c) Adoption of laws and regulations concerning citizenship, immigration, water resources and taxation; (d) Approval of the federal budget; (e) Election of the Presidential Council; and (f) Other matters which specifically require special majority approval pursuant to other provisions of this Constitution. 18. The law shall provide for a conciliation mechanism between the Chambers of Parliament. Section B. The Executive The Presidential Council 1. The Office of Head of State is vested in a Presidential Council, which shall exercise the executive power. The Council shall have six voting members. Parliament may elect additional, non-voting members. Unless it decides otherwise by special majority, it shall elect three non-voting members. 2. All members of the Presidential Council shall be elected by Parliament for a fixed five-year term on a single list by special majority. The list shall specify the voting members. 3. Members of the Presidential Council shall not hold any other public office or private position. 4. The members of the Presidential Council shall continue to exercise their functions after expiry of their term in office until a new Council has been elected. 5. In the event of a vacancy in the Council, a replacement shall be elected by Parliament by special majority for the remainder of the term of office. 6. The composition of the Presidential Council shall be proportional to the numbers of persons holding the internal constituent state citizenship status of each constituent state, though at least one-third of voting members and one-third of non-voting members must hail from each constituent state. 7. The Presidential Council shall strive to reach all decisions by consensus. Where it fails to reach consensus, it shall make decisions by simple majority of members present and voting unless otherwise stated in this Constitution. Such majority must in all cases comprise at least one member from each constituent state. In case of absence, a voting member may delegate his/her voting right to a non-voting member. 8. Notwithstanding voting rights, the members of the Presidential Council shall be equal. Any member of the Council shall be able to place an item on the agenda of the Council. 301

Part I: Constitutional Issues 9. The Presidential Council may, where appropriate, invite the executive heads of the constituent states to participate without a vote in its meetings. 10. The Presidential Council shall suggest candidates or appoint members for European Union and international bodies. The President and the Vice-President of the Council 11. The Council shall decide on the rotation of the offices of the President and Vice-President among its members. Unless the voting members of the Council unanimously decide otherwise, the following arrangements shall apply: (a) Two members of the Council, not hailing from the same constituent state, shall be elected by the Council on a single list. (b) They shall rotate in the exercise of the offices of the President and VicePresident of the Council every twenty calendar months. The first President of the Council in each term shall be the member hailing from the more populous constituent state. The Vice-President of the Council shall assume the duties of the President in the absence or temporary incapacity of the President. 12. The President of the Council shall convene and chair the meetings of the Presidential Council. 13. Neither the President nor the Vice-President of the Council shall have a casting vote. Representation of the Presidential Council 1. The President of the Council shall represent the Presidential Council as Head of State. 2. In representing the Presidential Council as Head of State, the President shall attend official functions, sign and receive credentials of diplomatic envoys, and confer the honours of the United Cyprus Republic. 3. The President of the Council shall represent the United Cyprus Republic at meetings of heads of government. 4. The President of the Council, when representing Cyprus at meetings of the European Council, shall be accompanied by the Vice-President. 5. The heads of the relevant Departments shall represent the United Cyprus Republic at meetings of government ministers unless otherwise provided for by law or by agreement between the federal government and the constituent states. 6. Where an international meeting is likely to address vital interests of a constituent state, and the Council representative to that meeting hails from the other constituent state, the Council shall, upon special request of a majority of Council members from the interested constituent state, appoint a member from that constituent state to accompany the Council 302

In Search of a Solution representative, provided delegations to such meetings may comprise more than one person. 7. Any representative of the United Cyprus Republic at international meetings shall be bound by decisions of the Presidential Council. Where the Council has appointed one of its members to accompany its representative in accordance with paragraph 5 of this Article, the representative of Cyprus shall exercise any discretion in concord with such member. The federal police There shall be a federal police composed of an equal number of personnel hailing from each constituent state. The federal police shall control Cyprus’ border and protect federal officials, buildings and property, as well as foreign dignitaries and diplomatic missions. Section C: Independent Officers and Institutions Central Bank of Cyprus 8. The Central Bank of Cyprus shall be the monetary authority of the United Cyprus Republic. It shall issue currency, define and implement monetary policy and regulate and supervise credit institutions. 9. The Central Bank shall be independent from other arms of the federal government and operate in accordance with European Union requirements. 10. The primary objective of the Central Bank of Cyprus shall be to maintain price stability. 11. The organs of the Central Bank shall be the Governor and the DeputyGovernor, the Board of Directors and the Monetary Policy Committee. Their composition shall be as follows: (a) The Governor and Deputy Governor shall not hail from the same constituent state. They shall be appointed by the Presidential Council. (b) The Board of Directors shall consist of five members, including the Governor and Deputy Governor, with at least two members hailing from each constituent state. One member may be a non-Cypriot. (c) The Monetary Policy Committee shall consist of seven members, including the Governor and the Deputy Governor, as well as any nonCypriot member of the Board of Directors, with at least three members hailing from each constituent state. All decisions of the Board of Directors and the Monetary Policy Committee shall be taken by simple majority. The law shall otherwise regulate the appointment of members to the organs of the Central Bank and their decision-making procedures.

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Part I: Constitutional Issues 12. The Governor and Deputy Governor shall be appointed for a term of seven years. The other members of the Board of Directors shall be appointed for a term of five years, and the other members of the Monetary Policy Committee for a term of seven years. 13. Within the framework of the European Union the responsibilities and powers of the Central Bank of Cyprus may be transferred to the European Union Central Bank. 14. The law may provide for the establishment of branches of the Central Bank in each constituent state, and for inclusion of branch directors in the Board of Directors of the Central Bank. Other independent officers 15. The Attorney-General and the Deputy Attorney-General and the AuditorGeneral and the Deputy Auditor-General shall be independent officers and not come under any department. They shall be appointed by the Presidential Council for a non renewable term of office of nine years but no longer than until their 75th birthday. 16. The Attorney-General and the Auditor-General shall not hail from the same constituent state nor shall the Attorney-General and the Deputy Attorney-General or the Auditor-General and the Deputy-Auditor General. The office of the Attorney-General and the Deputy Attorney-General 17. The Attorney-General and the Deputy Attorney-General shall be the Head and Deputy Head, respectively, of the Federal Law Office. They shall be appointed and hold office in the same manner and under the same terms and conditions as judges of the Supreme Court of Cyprus and shall not be removed from office except on like grounds and in the same manner as such a judge. 18. The Attorney-General, assisted by the Deputy Attorney-General, shall be the legal adviser of the federal government and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him/her by this Constitution or by law. 19. The Attorney-General shall have power, exercisable at his/her discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings regarding offences against federal law against any person in the United Cyprus Republic. 20. The law shall regulate further aspects of the office of the AttorneyGeneral and the Deputy Attorney-General. The office of the Auditor-General and the Deputy Auditor-General 21. The Auditor-General and Deputy Auditor-General shall be the Head and Deputy Head, respectively, of the Federal Audit Office. They shall be members of the federal public service and shall not be retired or removed

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In Search of a Solution from office except on like grounds and in like manner as judges of the Supreme Court of Cyprus. 22. The Auditor-General, assisted by the Deputy Auditor-General, shall, on behalf of the federal government, control all disbursements and receipts and audit and inspect all accounts of moneys and other assets administered, and of liabilities incurred, by or under the authority of the federal government and for this purpose, shall have the right of access to all books, records and returns relating to such accounts and to places where such assets are kept. 23. The Auditor-General, assisted by the Deputy Auditor-General, shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him/her by law. The AuditorGeneral shall submit annually a report on the exercise of his functions and duties under this Constitution to the Presidential Council who shall cause it to be laid before Parliament. Section D: The Judiciary The Supreme Court of Cyprus 24. The Supreme Court of Cyprus shall count an equal number of judges from each constituent state among its members. The Presidential Council shall appoint the judges, for a non-renewable term of nine years, in accordance with criteria and procedures stipulated in a special majority law which shall also fix the number of judges. 25. The Supreme Court shall have exclusive jurisdiction over disputes between the constituent states, between one or both constituent states and the federal government and between organs of the federal government. 26. The Supreme Court shall have exclusive jurisdiction to determine the validity of any federal or constituent state law under this Constitution or any question that may arise from the precedence of Constitutional laws. Upon request of constituent state courts or other federal or constituent state authorities it may do so in the form of a binding opinion. 27. The Supreme Court shall be the appeals court in all other disputes on matters which involve the interpretation or an alleged violation of the Foundation Agreement, this Constitution, federal laws (including federal administrative decisions), or treaties binding upon the United Cyprus 28 Republic. 28. The Supreme Court shall have primary jurisdiction over violations of federal law where provided by federal legislation. 29. If a deadlock arises in one of the federal institutions preventing the taking of a decision without which the federal government or its institutions could not properly function, or the absence of which would result in a substantial default on the obligations of the United Cyprus Republic 305

Part I: Constitutional Issues as a member of the European Union, the Supreme Court may, upon application of a member of the Presidential Council, the President or Vice-President of either Chamber of Parliament, or the Attorney-General or the Deputy Attorney-General, take an ad interim decision on the matter, to remain in force until such time as a decision on the matter is taken by the institution in question. In so acting, the Supreme Court shall exercise appropriate restraint. The Law on the Central Bank may exempt the Central Bank from this provision. 30. The Supreme Court of Cyprus shall sit as a Constitutional Court or as a Court of Primary Federal Jurisdiction. Judges shall be appointed to serve either on the Constitutional Court or the Court of Primary Federal Jurisdiction. The law shall regulate the number of judges serving in each court, the attribution of competence to each court, the division of the two courts into chambers, and any right of appeal within either court or from the Court of Primary Federal Jurisdiction to the Constitutional Court. 31. The Supreme Court shall strive to reach its decisions by consensus and issue joint judgments of the Court. However, all decisions of the Supreme Court may be taken by simple majority as specified by law. Amendments of this Constitution 1. Amendments of this Constitution, including the attachments which are an integral part of it, shall be considered and adopted by the federal Parliament after consultation with the constituent state governments and interested sectors of society. 2. The Basic Articles of this Constitution cannot be amended. 3. After adoption by both Chambers of Parliament, proposed amendments shall be submitted to referendum for approval by separate majority of the people in each constituent state. 4. Amendments shall enter into force 90 days after their approval, unless the amendment otherwise provides. Transitional Provisions Responsibility for debts incurred prior to the entry into force of the Foundation Agreement As a matter of principle, debts incurred between 1964 and the entry into force of the Foundation Agreement shall be serviced and paid by the constituent state whose population benefited from the relevant loan. If a loan was used for public works and infrastructure which, after entry into force of the Foundation Agreement, benefit the whole of Cyprus, the relevant debt shall be serviced and paid by the federal government. The same applies to debts incurred prior to 1964 and their refinancing. The federal government shall however assume responsibility for all external

306

In Search of a Solution debts other than debts to Greece or Turkey or debts from purchase of armaments, which shall be assumed by the relevant constituent state. The internal financial responsibility for servicing and repayment of such debts shall nonetheless be borne in accordance with the above paragraph. Treaties in the Annex to the Foundation Agreement During the first two years after entry into force of the Foundation Agreement, a constituent state may object to a particular treaty having been listed in the relevant Annex to the Foundation Agreement, or any reservation or declaration related to such treaty, on grounds of incompatibility with the Foun29 dation Agreement. Such objection shall be addressed to the Council of Ministers or the Presidential Council. Upon receipt of such objection, the Council of Ministers or the Presidential Council shall within two weeks decide on the compatibility of the treaty with the Foundation Agreement. If they cannot reach a decision within that time, they shall immediately refer the matter to the Supreme Court which shall decide without delay. Where in accordance with the procedure in paragraph 2 a treaty is determined to be incompatible with the Foundation Agreement, Cyprus shall denounce or otherwise terminate the treaty as soon as possible under 30 international law. Where in accordance with the procedure in paragraph 2 a determination is made that particular provisions of a treaty are incompatible with the Foundation Agreement and separable from the other provisions of the treaty, Cyprus shall seek a modification of the treaty. If the other High Contracting Party does not agree to the modification, Cyprus shall denounce or otherwise terminate the treaty as soon as possible under international law. Upon request of either constituent state within six months of entry into force of the Foundation Agreement, the Council of Ministers or the Presidential Council may accord a transitional period for the application of a treaty in either constituent state where this seems appropriate, and shall inform the other High Contracting Party accordingly. A constituent state may ask the Council of Ministers or the Presidential Council during the first two years after entry into force of the Foundation Agreement, to transmit a request to the other High Contracting Party to a treaty listed in Annex V of the Foundation Agreement, to modify that treaty, so that it shall not apply to that constituent state. (a) Upon receipt of this request, the operation of the treaty shall be suspended in the territory of the requesting constituent state. (b) If (i) the scope of the treaty falls exclusively within the competence of the constituent states, and (ii) the treaty is of a nature that would permit its application to only one of the constituent states, the Council of Ministers or the Presidential Council shall consider favourably the request. If they 307

Part I: Constitutional Issues decide positively, they shall request the other High Contracting Party to modify the treaty accordingly. (c) If conditions (i) and (ii) of paragraph 6(b) are fulfilled, and the treaty, in addition, is on commercial and cultural matters, the Council of Ministers or the Presidential Council shall request the other High Contracting Party to modify the treaty accordingly. (d) If the other High Contracting Party refuses such request, the treaty shall remain in force for the entire territory of the United Cyprus Republic. Economic transition and harmonisation In the first years after entry into force of the Foundation Agreement, federal economic policy shall give special attention to the harmonisation and convergence of the economies of the constituent states within the shortest possible time. Without prejudice to the application of European Union law, the Foundation Agreement and the new state of affairs shall not be construed as altering rights enjoyed by businesspeople under import and/or distribution licences prior to entry into force of the Foundation Agreement, and such licences shall where possible be construed as licensing such persons to continue operating their businesses in their constituent state after entry into 31 force of the Foundation Agreement. Persons holding bank accounts in foreign currency in Cyprus upon entry into force of the Foundation Agreement shall be allowed to maintain such accounts after entry into force of the Foundation Agreement in accordance with the rules and regulations of the Central Bank, without prejudice to European Union requirements. Federal authorities shall accept book-keeping by private individuals and legal persons in Euros. The Central Bank shall issue regulations, in particular on applicable exchange rates. International military operations Until the accession of Turkey to the European Union, the United Cyprus Republic shall not put its territory at the disposal of international military operations other than with the consent of Greece and Turkey, in addition to the consent of the governments of both constituent states. Missing persons The executive heads of the constituent states shall without delay take steps to conclusively resolve the issue of missing persons. Both constituent states shall cooperate fully with the Committee on Missing Persons in Cyprus, in accordance with its terms of reference and keeping in mind the agreement reached between HE Glafcos Clerides and HE Rauf Denktash on 31 July 1997. Each constituent state shall carry out and conclude any and all necessary inquiries, including exhumations.

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In Search of a Solution Catalogue of human rights and fundamental freedoms In accordance with Article 11 of the Constitution Article 21 – Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Annex II: Territorial Arrangements Delineation of constituent state boundaries The boundaries of the constituent states, depicted in the maps attached to the Constitution, are described in detail in the attached table. All areas falling within these boundaries are legally part of the constituent state of which they form part from the moment of entry into force of the Foundation Agreement, regardless of whether their administration is delegated for an interim period in accordance with this agreement. There shall be a boundary committee comprising three representatives of each constituent state and at least one non-Cypriot. The committee shall be appointed upon entry into force of the Foundation Agreement, and shall demarcate the boundary on the ground. The demarcation by the committee may by agreement deviate from the stipulated boundary to take account of ownership of properties in the area of the boundary and significant topographical and other features such as graveyards and pre-existing paths. In towns (namely Nicosia and Famagusta) and built up areas in general, the final boundary shall be demarcated in such a way as to take into account as an overriding concern ownership of properties in the area of the boundary. Functionality of street use and administration shall also be a consideration. Any inconsistency between the above description of the course of the agreed boundary and the map shall be decided by consensus by the committee, or, where it is unable to reach consensus, by the Supreme Court of Cyprus. Phasing of territorial adjustment Administration of areas subject to territorial adjustment (other than the United Nations Buffer Zone) is entrusted by the constituent state of which they are legally part (‘the entitled constituent state’) to the authorities of the other constituent state (‘the entrusted authorities’) for specified periods from the day of entry into force of the Foundation Agreement. The entrustment of administration shall end, and the area shall be transferred to the entitled constituent state, in six phases as depicted in the attached map and specified in a further attachment to this Annex. The constituent states shall render full cooperation to the United Nations which, in conformity with its mandate, shall supervise activities relating to the transfer of areas subject to territorial adjustment and contribute to the maintenance of a secure environment.

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Part I: Constitutional Issues During the last months of phases three to six, when supervision by the United Nations of the activities relating to the transfer of areas subject to territorial adjustment shall be enhanced in the relevant areas, administration shall be shared between the entrusted authorities and the United Nations. The United Nations shall assume territorial responsibility for those areas, without prejudice to the administration of the daily lives of the local population by the entrusted authorities. The United Nations may issue directives to local officials, and, should it be necessary, preclude a local official from duty in the area; United Nations police shall have full powers in the area and the right to give operational instructions to local police. Areas subject to territorial adjustment shall be vacated of any forces and armaments no later than two weeks prior to: (a) the specified date for transfer to the entitled constituent state (in phases one and two); or (b) the specified date for assumption of territorial responsibility by the United Nations (in phases three to six); and no forces and armaments, except those of the United Nations, shall be located thereafter in that area or within 1000 metres of it. Security cooperation during period of territorial adjustment During the phasing period, the areas under the administration of the constituent states shall be clearly marked by temporary poles with marking flags, as directed by the Transitional Committee referred to in paragraph 2. During this period, and without prejudice to the paragraph below, there shall be no less than ten agreed crossing points along the lines of the following roads or routes: Dherinia to Famagusta road, Pyla/Pile to Beyarmudu (Pergamos) road, Athienou to Melousha road, Limpia to Akincilar (Louroujina) road, Ledra crossing point, Astromeritis to Morphou road, Nicosia–Kaimakli to Nicosia–Omorphita, Skouriotissa to Lefke (Lefka) road, Galini to Potamos Tou Kambou road, and Kato Pyrgos to Karavostasi road. For the period of territorial adjustment, there shall be a Transitional Committee, comprising a representative of each constituent state and the United Nations, with the latter chairing. The Committee shall consider any issues that relate to the territorial adjustment or the presence in a constituent state of persons holding the internal constituent state citizenship status of the other constituent state, as may be brought to its attention by one of its members. In particular, the Committee shall consider matters relating to public order and security and shall determine when and for how long, for such reasons, the agreed crossing points need to be closed or changed, or limits temporarily imposed on the number of persons using them.

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In Search of a Solution Current inhabitants The following special arrangements shall safeguard the rights and interests of current inhabitants of areas subject to territorial adjustment, and provide for orderly relocation to adequate alternative accommodation (in accordance with Annex VII) in appropriate locations where adequate livelihoods may be earned: (a) persons to be relocated shall be registered by household, including details of their current occupation or means of livelihood; (b) communities may request to be relocated as a community; (c) persons with sufficient financial means shall vacate properties no later than one month prior to the agreed date of transfer of administration of the relevant area, unless the Relocation Board exceptionally decides otherwise; (d) persons without sufficient financial means shall receive no less than three months’ notice of the date for relocation once alternative accommodation has been identified; during this time they may access this alternative accommodation to prepare it for their arrival; (e) persons to be relocated who do not have sufficient financial means shall be provided with transport for the members of their household and their belongings, as necessary; and (f) special arrangements shall be made for families with young children, the elderly and the disabled. Persons other than Cypriot citizens who, on the date of entry into force of the Foundation Agreement, reside in areas subject to territorial adjustment and have lived in Cyprus for no less than five years, may apply for financial assistance to relocate to their country of origin. Such assistance shall be in the form of cash grants payable on their arrival in their country of origin, within five years of entry into force of the Foundation Agreement. The amount of the grant shall be in accordance with a scale, based on a figure of 32 no less than 10,000 Euros for a household of four. Relocation Board Relocation pursuant to Article 5 shall be managed by a Relocation Board, comprising five persons, including one representative of each constituent state and three non-Cypriots who are not citizens of Greece, Turkey or the United Kingdom and of whom one shall be a United Nations representative. The latter is invited to chair the Board. The Secretary-General of the United Nations is invited to appoint the non-Cypriot members of the Board. The constituent states shall each nominate a representative of their authority competent for housing and property issues, their authority competent for employment/economic issues, their constituent state police and each of the local authorities for the areas subject to territorial adjustment, to

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Part I: Constitutional Issues cooperate and liaise with the Relocation Board and attend extended planning meetings at the request of the Board. Among other responsibilities the Relocation Board will, in cooperation with international agencies, work with the constituent states to develop and support the implementation of a comprehensive resettlement plan based on a social assessment survey of households that will be affected by relocation and a land use plan for areas to receive relocated households. The resettlement plan shall be finalised by 31 August 2004. It shall be presented to the Presidential Council which shall make appropriate provisions regarding the cost of resettlement, including international financial assistance committed to the resettlement plan, are included in the budget for 2005. Based on the results of the survey, the Relocation Board shall identify options to help persons affected by relocation to secure alternative accommodation, including targeted financial assistance, as well as public and low-cost social housing. When planning the construction of alternative accommodation, special consideration shall be given to requests of communities wishing to relocate as a community. The Relocation Board shall also work with the constituent state authorities to ensure a smooth transition to restored or new forms of livelihood for relocated families. With the expertise and support of international organizations and public–private partnerships, the Relocation Board shall assist the constituent state governments in developing and implementing programmes for the rapid restoration of livelihood of relocated households. These programmes shall include, but not be limited to, active labour market programmes, training and retraining for job skills focusing on key growth areas, credits and matching grants for development of new small and medium size enterprises, promoting availability of financing for small businesses, development of community infrastructure and improved targeting of social benefits as needed. The Relocation Board shall work closely with the Property Board regarding decisions on reinstatement in the areas subject to territorial adjustment and the identification of alternative accommodation. It shall verify that adequate alternative accommodation is ready for inhabitation before setting dates for relocation. It shall also initiate the necessary arrangements with the competent authorities in the receiving municipalities to ensure that persons relocating there are assisted in establishing a livelihood in those municipalities. The Relocation Board shall adopt rules and regulations in accordance with these provisions. The constituent states shall fully respect and implement the decisions of the Relocation Board in a timely manner, and adopt any necessary legislation or regulations to ensure their enforcement. Properties Properties located in areas subject to territorial adjustment shall be handled in accordance with the provisions of Attachment 4 of Annex VII.

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In Search of a Solution

Detailed description of phasing lines of territorial adjustment Phase 1 – Handover to the Greek Cypriot State after 104 days: Phase 1 includes UNFICYP relinquishing authority over the Buffer Zone (BZ) and the handover of Varosha and Kokkina. This Phase boundary generally follows the northern edge of the BZ with the exception of the Kokkina pocket which is handed over and Varosha detailed below:

Varosha Longitude (E)

Latitude (N)

Description

33°59'57.90" 33°57'28.40" 33°57'9.25" 33°56'52.06" 33°56'47.34" 33°57'3.20" 33°57'1.40" 33°57'3.31" 33°57'24.42" 33°57'56.92" 33°58'0.24" 33°58'22.99"

35°4'13.46" 35°7'4.05" 35°7'8.36" 35°7'8.08" 35°6'52.75" 35°6'26.06" 35°6'1.99" 35°5'52.43" 35°5'0.36" 35°5'15.05" 35°4'56.34" 35°4'15.47"

Along coast to Then along fence line

Joining the northern edge of the BZ

Phase 2 – Handover to the Greek Cypriot State after 6 months: Phase 2 phase boundary line is the same as Phase 1 with the addition of the handover areas of Achna and Petra detailed below:

Achna Longitude (E)

Latitude (N)

Description

33°48'54.81" 33°45'48.74" 33°45'43.46" 33°46'5.29"

35°4'12.51" 35°3'48.46" 35°3'44.49" 35°2'35.35"

At SBA boundary

At SBA boundary

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Part I: Constitutional Issues Petra Longitude (E)

Latitude (N)

Description

32°55'53.22" 32°55'21.12" 32°54'42.81" 32°53'29.86" 32°53'25.74" 32°53'27.29" 32°53'25.74" 32°53'13.84" 32°53'4.02"

35°6'4.79" 35°6'29.86" 35°6'52.79" 35°6'47.63" 35°6'37.85" 35°6'35.72" 35°6'34.01" 35°6'34.01" 35°6'28.05"

Joining the northern edge of the BZ

Joining the northern edge of the BZ

Phase 3 – Handover to the Greek Cypriot State after 1 year and three months, with enhanced United Nations supervision in the last three months: Phase 3 phase boundary line is the same as Phase 2 with the addition of the handover areas of Loutros/Galini and Tymvou detailed below:

Loutros/Galini Longitude (E)

Latitude (N)

Description

32°47'26.31" 32°47'22.82" 32°47'3.01" 32°46'17.63" 32°46'2.32" 32°45'54.44" 32°45'46.07" 32°45'23.43" 32°45'11.10" 32°44'44.97" 32°44'35.12" 32°44'25.75" 32°43'44.91" 32°43'43.93"

35°7'24.11" 35°7'40.69" 35°8'21.93" 35°8'42.89" 35°8'53.79" 35°8'54.99" 35°8'53.75" 35°8'45.62" 35°8'50.04" 35°8’54.85" 35°8’54.82" 35°8’56.83" 35°8’40.55" 35°8’38.53"

Joining the northern edge of the BZ

314

Joining the northern edge of the BZ

In Search of a Solution Tymvou Longitude (E)

Latitude (N)

Description

33°25'3.64" 33°25'43.96" 33°26'45.03" 33°28'46.70" 33°31'2.53" 33°31'16.78" 33°30'38.10" 33°29'50.41" 33°30'21.74" 33°30'14.68" 33°29'40.77" 33°28'47.06"

35°10'18.11" 35°10'8.13" 35°10'13.89" 35°8'26.25" 35°8'20.49" 35°7'34.36" 35°5'7.64" 35°4'16.18" 35°4'1059" 35°5'56.80" 35°4'10.44" 35°3'27.67"

Joining the northern edge of the BZ

Spot height ‘137’ VIALIAS riverbed

Joining the northern edge of the BZ

Phase 4 – Handover to the Greek Cypriot State after 2 years and six months, with enhanced United Nations supervision in the last six months: Phase 4 boundary line is the same as Phase 3 with the addition of the handover areas of south Famagusta, Kalopsida/Acheritou, Lysi/Kontea, Avlona and Lymnitis/Soli detailed below: South Famagusta Longitude (E)

Latitude (N)

Description

33°57'57'2.98"

35°5'51.42"

Joining the Varosha line following minor road to

33°55'55.77" 33°55'26.85" 33°54'58.10"

35°5'28.55" 35°5'37.49" 35°5'11.11"

At corner of SBA boundary

Kalopsida/Acheritou Longitude (E)

Latitude (N)

Description

33°52'19.71" 33°45'27.93" 33°44'15.26"

35°7'24.71" 35°7'27.48" 35°3'22.52"

At SBA boundary Then follows final boundary to At SBA boundary

315

Part I: Constitutional Issues Kontea/Lysi Longitude (E)

Latitude (N)

Description

33°43'0.34"

35°4'11.89"

At SBA boundary following final boundary to

33°43'31.64" 33°39'28.55"

35°7'6.99" 35°7'9.19"

33°32'26.68"

35°4'47.4"

At final boundary following final boundary to

Avlona Longitude (E)

Latitude (N)

Description

33°7'6.00" 33°6'51.78" 33°6'39.61" 33°6'5.14" 33°5'40.32" 33°5'36.18"

35°10'1.03" 35°10'17.46" 35°10'25.59" 35°10'31.09" 35°10'29.20" 35°10'19.98"

Joining the northern edge of the BZ

Longitude (E)

Latitude (N)

Description

32°47'30.75" 32°47'42.35" 32°47'59.71" 32°48'5.45"

35°7'22.33" 35°7'37.65" 35°8'24.08" 35°8'55.67"

Joining the northern edge of the BZ

Joining the northern edge of the BZ

Limnitis/Soli

Joining the coast

Phase 5 – Handover to the Greek Cypriot State after 3 years, with enhanced United Nations supervision in the last six months: Phase 5 phase boundary line is the same as Phase 4 with the addition of the handover areas of Famagusta, Mia Milia, Gerolakkos, and Zodhia detailed below: Famagusta Longitude (E)

Latitude (N)

Description

33°57'11.28" 33°54'21.16"

35°7’15.01" 35°5'51.76"

At the coast following final boundary to At SBA boundary

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In Search of a Solution Mia Milia Longitude (E)

Latitude (N)

Description

33°26'44.57"

35°10'13.87"

At Phase 3 boundary following final boundary to

33°23'58.58"

35°12'3.58"

Gerolakkos Longitude (E)

Latitude (N)

Description

33°19'12.48"

35°10'51.85"

33°15'49.58"

35°11'37.29"

At the final boundary line following final boundary to At the final boundary line following phase line

33°14'54.21" 33°13'20.59"

35°11'27.11" 35°11'2.00"

Joining the northern edge of the BZ

Longitude (E)

Latitude (N)

Description

33°1'38.42" 33°1'30.36" 33°1'20.59" 33°0'58.62" 33°0'24.38" 32°59'53.09" 32°59'32.07" 32°58'8.99" 32°56'45.69"

35°9'38.43" 35°9'58.77" 35°10'6.80" 35°10'16.24" 35°10'24.07" 35°10'26.08" 35°10'18.05" 35°9'31.27" 35°9'0.34"

Joining the northern edge of the BZ

32°58'20.28"

35°7'9.79"

Zodhia

At the final boundary line following final boundary to Joining the northern edge of the BZ

Phase 6 – Handover to the Greek Cypriot State after 3 years and six months, with enhanced United Nations supervision in the last ten months: Phase 6 is the final boundary line.

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Part I: Constitutional Issues ANNEX III: TREATMENT OF PROPERTY AFFECTED BY EVENTS SINCE 1963 General Articles General provisions The provisions in this Annex and its attachments deal with properties which were affected as a consequence of intercommunal strife, military action or the unresolved division of the island between December 1963 and entry into force of the Foundation Agreement and introduces an extraordinary regime to deal with these properties. The provisions in this Annex and its attachments will continue to apply to such properties until all matters covered by these provisions have been closed by the Property Board or the Supreme Court. Terms used in this Annex and its attachments are defined in Attachment 1. Provisions of this Annex and its attachments shall be referred to hereinafter as ‘these provisions’. The Cyprus Property Board These provisions, unless otherwise stated, shall be implemented by the Cyprus Property Board and its divisions: the Claims Bureau, the Cyprus Housing Bureau and the Compensation Bureau. Its composition, powers and procedures, as well as the obligations of the federal government and the constituent states in relation to it, are further regulated in Attachment 2. Property in areas subject to territorial adjustment Property located in areas subject to territorial adjustment is regulated by Attachment 4. Where there are no specific provisions in Attachment 4, the other provisions of this Annex shall apply. Religious sites The Churches and Evkaf shall be entitled, without exception and within three years of entry into force of the Foundation Agreement, to reinstatement of any affected property owned by them which was used as a religious site in 1963 or 1974. This Article shall not limit the right of Churches and Evkaf to claim compensation in lieu of reinstatement for any affected property under these provisions. Regulation of Exercise of Property Rights Suspension of dealings, proceedings or alterations with respect to affected property Any transaction, dealing, or any proceeding in any court or legal or administrative body in Cyprus, or any physical alterations (apart from minor or 318

In Search of a Solution emergency maintenance), with respect to any affected property shall be suspended or prohibited upon entry into force of the Foundation Agreement, until the Property Board: (a) Authorises such dealing, proceeding or physical alteration to continue or occur; (b) Refers the dealing or proceeding to another competent court or authority; or (c) Makes a final determination in relation to the property. Bearing in mind that the Foundation Agreement provides a domestic remedy for the solution of all matters related to affected property, the United Cyprus Republic shall, pursuant to Article 37 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and invoking the fact that the Foundation Agreement is providing a domestic remedy for the solution of all questions related to affected property, inform the European Court of Human Rights through the letter in attachment V that the United Cyprus Republic shall therefore be the sole responsible state party and request the Court to strike out any proceedings concerning affected property currently before it, in order to allow the domestic mechanism agreed to solve these cases to proceed. Claims and applications A dispossessed owner shall be entitled to claim compensation for his/her title to property or the reinstatement of his/her property or apply for assistance in arranging the sale, long-term lease or exchange of his/her property. Current users of affected properties who are themselves dispossessed owners or persons who own significant improvements to affected properties may apply to receive title to such properties. Current users of properties to be reinstated may apply to benefit from the special measures detailed in Attachment 3. All such claims and applications shall be made to the Property Board within the time limit specified and shall be processed and determined in accordance with these provisions. All payments required as a condition for the transfer of title or reinstatement shall be made to the Property Board within three years of the relevant decision of the Property Board, unless the decision specifies an earlier date. Transfer of title or reinstatement shall not take effect until all stipulated payments are made in full. Failure to make payments within the specified period may result in loss of or modifications to rights with respect to the property. Liability for damage Persons responsible for serious damage to or destruction of properties after 11 November 2002 shall be liable to the dispossessed owner and/or the

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Part I: Constitutional Issues Property Board for the cost of the damage up to the market value of the property. In addition, the Property Board may fine such persons and take other punitive measures, including modifying decisions previously made in their favour. Section A: Compensation Entitlement to full and effective compensation Any dispossessed owner shall be entitled to claim full and effective compensation as determined by the Property Board in accordance with international standards (hereinafter referred to as ‘compensation’) in exchange for transfer of title to the affected property to the Property Board. Entitlements to compensation shall be assessed and paid by the Property Board at current value, unless otherwise specified in these provisions. Compensation shall be paid in the form of both compensation bonds and property appreciation certificates drawn on a compensation fund. The establishment of the Compensation Fund, issuing and use of bonds and property appreciation certificates shall be regulated by the provisions in Attachment 2. Dispossessed owners of properties which, according to the following provisions, are not reinstated, shall be entitled to compensation. Property owned by institutions Title to affected properties, other than religious sites, which are owned by institutions shall be transferred to the Property Board in exchange for compensation. Property used for public benefit purposes Title to an affected property which is being used for a purpose in the public benefit upon entry into force of the Foundation Agreement which objectively justifies compulsory acquisition shall be transferred to the federal government or the relevant constituent state in exchange for payment of the current value by the relevant authority to the Property Board. Property required for military purposes Title to any affected property which is specified in the Additional Protocols to the Treaty of Alliance, or any attachment thereto, as being required for military purposes shall be transferred to the constituent state in which it is located, in exchange for payment of the current value by the relevant constituent state to the Property Board. Property currently used by dispossessed owners A dispossessed owner who is the current user of an affected property of similar current value to a property of which s/he was dispossessed and has been using the affected property on a continuous basis for at least ten years, may apply to 320

In Search of a Solution the Property Board to receive title to that property in exchange for title to the property of which s/he was dispossessed. The application shall be granted if the current value of the affected property is no greater than 50% more than the current value of the property of which s/he was dispossessed. If the current value of the affected property is more than 50% greater than the current value of the property of which the current user was dispossessed, the Property Board shall assist the dispossessed owner and the current user to reach an amicable agreement. If this fails, the Property Board may grant or refuse the exchange, taking into account the arguments of both sides, or partition the property as appropriate. If the current value of the affected property is less than that of the property of which the current user was dispossessed, s/he may claim compensation for the difference in value. If the current value of the affected property is more than the current value of the property of which the current user was dispossessed, s/he shall pay the difference to the Property Board prior to the transfer of title. Property currently used by subsequent purchasers from dispossessed owners Any purchaser (or his/her successors in title) of an affected property, which was assigned to a dispossessed owner (hereinafter ‘the vendor’) and was of a similar current value to a property of which the vendor was dispossessed, shall have the same rights and obligations as the vendor would have had according to Article 12 with respect to the affected property, provided that s/he and the vendor and any predecessors in title have collectively been current users of the affected property on a continuous basis for at least ten years. Title to the property of which the vendor was originally dispossessed shall be transferred to the Property Board. If the current value of the affected property is less than that of the property of which the vendor was originally dispossessed, the vendor may claim the difference in compensation. The above provision does not apply if the Property Board cannot obtain title to the property of which the vendor was dispossessed because the vendor has already legally disposed of it. Significantly improved property The owner of a significant improvement to an affected property may apply to receive title to that property, in exchange for payment of the current value of the affected property without the improvement. The Property Board shall order transfer of title after payment of compensation to the dispossessed owner at the current value for his/her interest in the property. Section B: Reinstatement into possession Eligibility for reinstatement Affected properties which do not fall into the above categories shall be eligible to be reinstated. 321

Part I: Constitutional Issues Agreed levels of reinstatement Any dispossessed owner (other than an institution) is entitled to reinstatement of his/her affected property within the limits of his/her reinstatement entitlement. To this effect, s/he may elect any of his/her affected property which is eligible for reinstatement. If the dispossessed owner elects to be reinstated to a dwelling which s/he has not built and in which s/he did not live for a period of at least 10 years and which has been used by the same current user for the last 10 years, the Property Board shall use its discretion, taking into account all relevant factors, in deciding whether to grant reinstatement. Should the Property Board not grant reinstatement of such a dwelling, the dispossessed owner shall choose another of his/her affected properties eligible for reinstatement. In the absence of such eligible property, the following paragraph shall apply. If the reinstatement entitlement is larger than the area or the value of a dispossessed owner’s affected property, which is eligible for reinstatement, such owner may: (a) sell his/her reinstatement entitlement to another dispossessed owner from the same municipality or village; (b) exchange his/her reinstatement entitlement for a property in the same village or municipality of his/her choosing from among the holdings of the Property Board, or if no equivalent land is available, in a neighbouring village or municipality; or (c) receive compensation and buy property of equivalent size and value in the same village or municipality; provided s/he was displaced after his/ her 10th birthday. If the reinstatement entitlement is not sufficient to permit the dispossessed owner to be reinstated in a dwelling which s/he owned when it was built or in which s/he lived for at least ten years, the dispossessed owner will be entitled to reinstatement of the dwelling and up to one donum of the adjacent land area of which s/he was dispossessed. If the affected property of a dispossessed owner has been distributed or sub-divided since dispossession, this special rule only applies to the aggregated reinstatement entitlements of all the successors in title as though a single claim was being made by the original dispossessed owner. Agricultural land shall not be reinstated if this warrants a sub-division into plots of less than five donums, or less than two donums for irrigable land. If the reinstatement entitlement does not allow the reinstatement of a dwelling or the minimum size of agricultural plots, the dispossessed owner may sell his/her reinstatement entitlement to another dispossessed owner from the same municipality or village or may elect to receive compensation for it. Purchased reinstatement entitlements can be aggregated with other reinstatement entitlements from the same municipality or village and used to obtain property in that municipality or village.

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In Search of a Solution These limitations shall not apply to reinstatement of religious sites, or to properties eligible for reinstatement which belong to dispossessed owners who, within six years of entry into force of the Foundation Agreement, make use of their unlimited right of return and establishment of residence in villages which were predominantly inhabited by Maronites in 1974 or the Karpas villages of Rizokarpaso/Dipkarpaz, Agialousa/Yeni Erenköy, Agia Trias/Sipahi, and Melanarga/Adacay or the Tillyria villages of Agios Georgoudi, Agios Theodoros, Alevga, Kokkina/Erenköy, Mansoura and Selladi tou Appi. To this effect, the Property Board shall not dispose in any permanent way of relevant properties during the first six years after entry into force of the Foundation Agreement. Moratorium for reinstatement No order of the Property Board shall require reinstatement of affected property to a dispossessed owner before a date which is: (a) Three years after the Foundation Agreement enters into force, for property which is vacant at that date; or (b) Five years after the Foundation Agreement enters into force, in all other cases. Improvements on reinstated property The owner of any improvement with a market value of more than 10% of the current value of a property to be reinstated, or 3000 Cyprus pounds, whichever is the lower, may apply for compensation for his/her interest in the property. The dispossessed owner shall be entitled to retain any improvement on the affected property after reinstatement, provided s/he pays the market value of the improvement to the Property Board. The dispossessed owner shall not be required to make such a payment if s/he satisfies the Property Board that the improvement is inappropriate for or irrelevant for his/her intended future use of the property for his/her own purposes, provided the intended future use is more or less similar to its use prior to dispossession. If the Property Board subsequently finds that the dispossessed owner or any successor in title makes use of the improvement, the Property Board may pursue him/her to recover the amount of compensation paid to the owner of the improvement under paragraph 1 of this Article. Section C: Long-term lease Lease requirement A dispossessed owner who is reinstated more than 100 donums according to the above provisions shall offer the amount of land in excess of 100 donums for lease, for a minimum period of twenty years, to any person holding the internal constituent state citizenship status of the constituent state where the 323

Part I: Constitutional Issues land is located. Such leases shall only be for use for own purposes and shall be arranged through the Property Board at market value. The current user shall have a right of first refusal to be exercised within 30 days. Tax exemptions for leases Leases in accordance with Article 19 shall be exempted from any taxes, governmental fees, charges and duties payable on signing of instruments, or on completion and registration of leases of such properties, and the relevant land shall not be subject to property taxes for the duration of the lease. The same exemptions shall apply to any other lease of reinstated property to a person holding the internal constituent state citizenship status of the state where the property is located, which is concluded within one year of reinstatement. Loss of Use Compensation for loss of use Any claims for compensation for loss of use of an affected property for any period commencing with dispossession shall be considered by the constituent state from which the claimant hails, taking into account: (a) Benefits previously enjoyed by the dispossessed owner on the grounds of his/her displacement; and (b) Any entitlements received by or payable to the dispossessed owner, whether before or after the Foundation Agreement, for the period of lost use. Judicial Review The Property Court A Property Court shall be established with power to conduct final judicial review of decisions of the Claims Panel. The Property Court shall be composed of an uneven number of judges. This number shall be specified by the President of the Supreme Court after consultation with members of the Supreme Court, and shall include an equal number of judges from each of the constituent states and no less than three non-Cypriot judges who are not citizens of Greece, Turkey or the United Kingdom. The President and judges of the Property Court shall be chosen in the same manner and for the same term of office as judges of the Supreme Court, unless the Supreme Court decides otherwise. Decisions of the Claims Panel shall not be subject to appeal or challenge in any constituent state court or otherwise, except by way of judicial review by the Property Court in accordance with the law and these provisions.

324

In Search of a Solution Decisions of the Property Court shall not be subject to further review or appeal to the Supreme Court. An application for judicial review of a Claims Panel decision may be made to the Property Court by any party with a legal interest in the decision or the property in question, within 60 days of publication of the decision by the Claims Panel in accordance with its rules. The Property Court shall have power to levy fees upon parties for procedural steps in initiating and contesting matters before it. The Property Court shall continue in operation until such time as the Supreme Court may decide to assume its functions. Amendment These provisions may be amended by the executive heads of the constituent states acting by consensus and with the approval of the legislatures of both constituent states. The text of any proposed amendment shall be agreed between the executive heads of the constituent states and submitted in identical form to each constituent state legislature. It shall come into force 30 days after its approval by both legislatures. Definitions In Annex VII and its attachments, the following terms are defined as: Affected property – immovable property in Cyprus which the owner, being a natural or legal person, left or of which s/he lost use and control as a consequence of intercommunal strife, military action or the unresolved division of the island between December 1963 and entry into force of the Foundation Agreement, and which has not since been reinstated to the owner (or his/her heir, personal representative or successor in title), and over which s/he has not regained use and control. Affected property shall not include any property which was voluntarily sold, transferred or otherwise permanently disposed of by the owner, to a natural or legal person who was able to gain effective control over the property, or for which compensation due to compulsory acquisition has been accepted. The onus of proof of any such voluntary transfer or lawful expropriation shall lie with the transferee or his/her successor in title. In the absence of evidence to the contrary for the individual case in question, dispossession shall be presumed to have been unlawful and/or involuntary. People who are successors in title of dispossessed owners and have not been able to gain effective control over the relevant affected property shall be treated in the same manner as the dispossessed owners themselves would be. Alternative accommodation – residential housing for people affected by the return and reinstatement of owners, who satisfy eligibility requirements. Such accommodation shall at least be of a level which is comfortable by reasonable modern standards (including being connected to public utilities where available, such as water and electricity); provides a reasonable ratio of living space

325

Part I: Constitutional Issues for the number of household members which it must accommodate; is no less than 70 square metres for a household of up to two persons, 100 square metres for three persons, 120 square metres for four to five persons and 140 square metres for larger households; and, where practicable, is comparable to the residence which the recipient is vacating or which s/he possessed prior to his/her displacement (up to a maximum standard to be defined in regulations of the Property Board). Current user – a person who has been granted a form of right to use or occupy property by an authority under a legal or administrative process established to deal with property belonging to dispossessed owners, or any member of his/her family who has a derivative right to use or occupy such property, or his/her heir or successor in title. The definition does not include any person who occupies or uses a property without any legal, administrative or formal basis, nor any person using or occupying property under a lease contract from a private person, nor any military force, body or authority. 33 Current value – value of a property at time of dispossession, plus an adjustment to reflect appreciation based among other things on increase in 34 average sale prices of properties in Cyprus in comparable locations in the intervening period up to the date of entry into force of the Foundation Agreement. The current value of property shall be assessed as at the date of entry into force of the Foundation Agreement. This value shall bear interest, at the same rate as interest on medium-term government bonds, from the date of entry into force of the Foundation Agreement until compensation bonds and property appreciation certificates are issued. Dispossessed owner – a natural or legal person who, at the time of dispossession, held a legal interest in the affected property as owner or part owner, his/her legal heir, personal representative or successor in title, including by gift. Institutions – entities other than natural persons, including privately or publicly-owned or controlled bodies, such as public or private trusts, religious institutions; military forces and companies (other than sole 35 corporations); Market rent – the amount of rent which could be charged for a property on the open market, based on an assessment of market rents paid for comparable 36 properties in comparable locations at the time of assessment. Market value – the amount for which a property could be sold on the open market, based on an assessment of purchase prices or amounts paid for 37 comparable properties in comparable locations at the time of assessment. Original state – the state or condition of affected property at the time of dispossession of the dispossessed owner, not including improvements subsequently made by any party, assessed at current value. Property – immovable property, being land and fixtures attached to land (or an ownership interest or undivided share in such a property). Reinstatement – restitution through the award of legal and physical pos-

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In Search of a Solution session to the dispossessed owner, so as to enable him/her to exercise effective control over such property, including use for his/her own purposes. Reinstatement entitlement – the reinstatement entitlement is one-third of the land area and one-third of the current value of the land (whichever applies) of the aggregated affected property of a dispossessed owner, who is not an institution. Religious site – a mosque, church, chapel, cemetery, monastery, shrine, tomb or other place of worship. In exceptional cases, where living quarters, contiguous gardens or other land and buildings owned by the Church or Evkaf form an inseparable unit with the religious site, such property up to a 38 maximum of 2 donum shall be considered part of the religious site. Significant improvement – an improvement (including any new construction on vacant land) to an affected property, which was made 39 between the time of dispossession and 31 December 2002, or based on a building certificate (proof of engineering approval for construction) issued prior to 31 December 2002, or any later improvement which has been deemed admissible for this purpose pursuant to regulations of the Property Board and of which the market value is greater than the value of the affected property in its original state. If the property was damaged after the time of dispossession but during the events of 1963 to 1974, the market value of the improvement shall be compared to the value of the property in its state at the time the improvement was made. For the purposes of determining the ownership of the improvement, it shall not be considered as having attached to the land; the owner of the improvement is the natural or legal person who paid for the improvement or his/her heir, personal representative or successor in title. The burden of proof concerning the value, ownership and date of construction of any improvement lies on the owner of the improvement. Sufficient financial means – income (taxable or otherwise) of more than X (X being the amount required to meet mortgage payments) or wealth of more than Y (Y being the amount required to purchase the currently-used property or alternative accommodation). Entitlements and interests in affected property shall be taken into account for the purposes of calculating wealth. The Property Board shall determine the amounts of X and Y and revise the amounts annually, based on market figures and expert input. Use for own purposes – use and enjoyment of affected property by a person, his/her family member, employee or representative (other than a tenant) through regular personal use (not necessarily as a permanent residence). Use for own purposes shall not include selling, renting, transferring by gift or otherwise disposing of an interest in affected property. Vacant – not used or occupied by a current user or any member of his/her family or successor in title who has a derivative right to use or occupy such property.

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Part I: Constitutional Issues

The Cyprus Property Board and compensation arrangements Section A: Establishment, operation, powers, staff and costs of the Cyprus Property Board Establishment and conduct of the Cyprus Property Board There shall be an independent, impartial, administrative body known as the Cyprus Property Board (hereafter the ‘Property Board’). The Property Board shall act in accordance with the principles and terms of the Foundation Agreement and in particular with these provisions. Operation of the Property Board The structure of the Property Board shall reflect the distinct functions it provides. It shall consist of the Governing Council and three separate divisions: (a) the Claims Bureau, dealing with the claims process; (b) the Cyprus Housing Bureau, dealing with arrangements for current users and persons affected by the property regime; and (c) the Compensation Bureau, dealing with compensation issues and property portfolio management. The Governing Council shall be composed of a total of seven members, being two members hailing from each constituent state and three non-Cypriot members who are not citizens of Cyprus, Greece, Turkey or the United Kingdom. Members shall be professionally qualified and of high moral and professional standing. At least two members shall also be legally qualified. Members shall be prohibited from holding any other federal or constituent state office during their membership of the Governing Council. Membership of the Council shall be part-time. The Claims Bureau shall be headed by a panel of seven members, being two members hailing from each constituent state and three non-Cypriot members who are not citizens of Cyprus, Greece, Turkey or the United Kingdom. Members shall be legally qualified and of high moral and professional standing. Members shall be prohibited from holding any other federal or constituent state office during their membership of the Claims Bureau. The Claims Panel shall work independently. The Governing Council shall only have budgetary powers over the Claims Bureau and shall have no authority over the decision-making process of the Panel. The remuneration of the Cypriot and non-Cypriot members of the Governing Council, the Claims Panel and the executive bodies of the Cyprus Housing Bureau and the Compensation Bureau shall be at the level of nine-tenths of the salary of the Cypriot and non-Cypriot judges of the Supreme Court respectively, although for the Governing Council it shall be on a pro-rata basis. Within 30 days of entry into force of the Foundation Agreement, the

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In Search of a Solution Presidential Council shall appoint by consensus one Cypriot member hailing from each constituent state and the three non-Cypriot members of the Governing Council. The remaining two members shall be appointed by the heads of government of the constituent states. For subsequent appointments, the members shall be appointed by the executive heads of the constituent states acting by consensus. Within sixty days of entry into force of the Foundation Agreement, the Governing Council shall appoint by consensus the members of the Claims Panel and the executive bodies of the Cyprus Housing Bureau and the Compensation Bureau. If there is failure to agree on the appointment of any member of the Governing Council in the time specified under these provisions, the Secretary-General of the United Nations or his representative is invited to appoint a replacement member to hold office for a minimum of eighteen calendar months. The members of the Governing Council and the Claims Panel, Cyprus Housing and Compensation Bureaux shall elect from among their members a presiding member, who shall perform this role for a period of three years or until the end of his/her term, whichever is the sooner. To ensure continuity of the Governing Council, the terms of office of the initial members shall be as follows: two members shall be appointed for an initial term of five years; two for an initial term of four years and three for an initial term of three years. All subsequent appointments will be for three-year terms. At the end of each three-year term, each member shall be replaced or reappointed for a further term. A similar approach shall be adopted for the members of the Claims Panel and the executive bodies of the Cyprus Housing Bureau and the Compensation Bureau. Members of the Governing Council may resign with 90 days prior notice. The Supreme Court may remove any member upon the application of the federal government of either constituent state in case of misconduct or grave breach of the member’s duties. In case of any vacancy, a new member shall be appointed within 90 days of notice of the vacancy or of its occurrence, whichever is the sooner. Five years after entry into force of the Foundation Agreement, the Compensation Bureau will become an independent legal entity named the Cyprus Compensation Trust. Three members of the Governing Council, including one member hailing from each of the constituent states and one non-Cypriot member (none being the presiding member), shall serve as members of the non-executive Directors Board of the Cyprus Compensation Trust. Two additional members shall be appointed by the Governing Council, based on their professional qualifications. Two members of the Directors Board of the Cyprus Compensation Trust shall be appointed for an initial term of five years; two for an initial term of four years; and one for an initial term of three years. All subsequent appointments will be for three-year terms. At the end of each term, each

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Part I: Constitutional Issues member shall be replaced or reappointed for a further term. New members shall be selected by the Directors Board, and confirmed by the annual meeting of property-certificate and bondholders. The remuneration of the members of the Directors Board shall be in line with international standards regarding non-executive directors of corporations and institutions of comparable magnitude as the Cyprus Compensation Trust and shall be confirmed by the annual certificate and bondholders meeting. The members of the Directors Board of the Cyprus Compensation Trust shall elect from among their members a presiding member, who shall perform this role for a period of three years or until the end of his/her term, whichever is the sooner. The members of the Governing Council, the Claims Panel and the executive bodies of the Cyprus Housing Bureau, and, for the first five years of its operation, the Compensation Bureau shall be granted immunity from any and all legal and administrative proceedings brought against them regarding the exercise of their official duties in good faith. Powers The Property Board shall have the power to: (a) Receive and rule on claims for affected property; (b) Decide any question or dispute before it regarding claims, entitlements of dispossessed owners, current users or owners of improvements, allegations of sale under duress, property valuation, right of first refusal or title to or other rights in respect of affected property; (c) Decide in individual cases on, and set and revise scales and values for the purposes of calculating compensation for affected property and improvements; rent, sale and purchase amounts; entitlements to alternative accommodation and other amounts under these provisions; (d) Demand and receive prompt, full and unhindered access to any and all records, archives, databases or other information regarding property in Cyprus, and to any and all property in Cyprus for the purpose of inspection, valuation and assessment related to its tasks and operation, and to receive copies or extracts of information, without fee, tax or other charge; (e) Order or procure the registration of interests in affected property or correction of entries in the relevant Land Titles Register or other records, based on entitlements under these provisions or other applicable law; (f) Refer any question arising in respect of an affected property to another competent court or authority, as appropriate and for finalisation or any interim or other ruling; (g) Order the suspension of any proceeding in any court or other authority,

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In Search of a Solution or any physical alterations (other than minor or emergency maintenance) with respect to affected property; (h) Order or procure the completion of any steps as required to transfer interests in affected property or, where necessary, partition affected property, under these provisions or other applicable law; (i) Issue legally binding orders to competent federal or constituent state bodies as required to implement its decisions; (j) Acquire and deal with affected property in a responsible manner under these provisions, including the administration and disposal of affected property transferred to it or coming under its control; (k) Facilitate the provision and allocation of alternative accommodation; (l) Assist persons, upon their request, in the sale, lease or exchange of affected property; (m) Collect damages from and issue fines against any persons found responsible for damaging or destroying affected property; (n) Administer and/or supervise a preferential loans scheme under these provisions and coordinate with the Central Bank and the federal government on any possibly needed regulations or provisions regarding implementation of the scheme, including mortgage default and enforcement mechanisms; (o) Adopt such rules, regulations, procedures, forms and other instruments as required for the performance of its functions; (p) Consult and seek recommendations from qualified experts to assist in the performance of its functions, including experts in valuation, economics, law, property markets, quantity and land surveying, registration, mapping and others; and (q) Perform other tasks, including those which may be assigned to it by the federal government or either constituent state, or which are incidental or related to the performance of its functions. Obligations of the federal government and the constituent states in respect of the Property Board The federal government and the constituent states shall take all steps as required to implement these provisions in good faith and in a timely manner. In order to fulfil their obligations under these provisions, the federal government and the constituent states shall, among other things: (a) Cooperate fully with the Property Board, and respect, recognise and comply with its decisions in accordance with their legally binding nature, including by officially publishing its decisions at the request of the Property Board; (b) Implement the decisions of the Property Board fully and promptly; (c) Cooperate with other relevant institutions dealing with affected property under these provisions;

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Part I: Constitutional Issues (d) Provide the Property Board with prompt, full and unhindered access to any and all records, archives, databases or other information regarding property in Cyprus, and to any and all property in Cyprus for the purpose of inspection, valuation and assessment related to its tasks and operation, and to provide copies or extracts of information, without fee, tax or other charge; (e) Adopt special measures, including at the request of the Property Board, to ensure the physical protection of property from damage or destruction; and (f) Act otherwise as necessary to respect property rights. The federal government and the constituent states shall adopt and enforce any legislation, regulations, procedures, orders, instructions, practice notes and other legislative instruments as necessary or appropriate to acknowledge the binding force of Property Board decisions, and ensure their enforcement and implementation, including as necessary through local administrative bodies, police or other agents. Such legislative instruments shall be drafted in consultation with the Property Board. In case the federal government or a constituent state fails within one year after entry into force of the Foundation Agreement to adopt laws for enforcement and implementation of decisions of the Property Board, the Property Board shall issue rules providing for enforcement and implementation of its decisions, which shall come into force as binding legal instruments of the federal government or the relevant constituent state, and which shall remain in force until the federal government or the relevant constituent state enacts effective laws in fulfilment of its obligations under these provisions. The federal government and the constituent states shall adopt legislation in accordance with any guidelines provided by the Property Board on the treatment of loans which are still outstanding and which were incurred prior to July 1974 for the purchase of affected property and on unresolved dealings in affected property. In case of mortgage default on a preferential loan granted within this scheme, the mortgage lender shall be exempt from any restriction on the acquisition of property in constituent state legislation. The mortgage lender shall then dispose of the property within the following three years. Obligations of federal and constituent state courts and competent authorities The courts, administrative bodies and other authorities of the federal government and the constituent states shall cooperate with the Property Board and acknowledge the legally binding force of its decisions, and shall take any steps as necessary to implement and enforce its decisions. If the Property Board refers a question to a court or other competent authority, such court or authority shall hear and determine the claim on its merits and shall not reject or refuse to decide the claim solely on the grounds

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In Search of a Solution that the claim is out of time or that any applicable limitation period has expired. The constituent states shall put land for alternative accommodation at the disposal of the Property Board, including, where necessary, through expropriation (against full and effective compensation). In allocating such land, the constituent states shall take into account the need for relocating persons, in particular those from areas subject to territorial adjustment, to be able 40 adequately to earn their livelihood. Staff The Governing Council shall employ a director who, under the supervision of the members of the Governing Council, shall be responsible for the coordination, administration and overall management of the work of the Property Board. In consultation with the Governing Council, the director shall employ three deputy directors to be responsible for the administration and management of the Claims Bureau, the Cyprus Housing Bureau and the Compensation Bureau respectively. The director and the deputy directors may employ staff in line with the overall responsibility of the office, including international expertise as needed. In particular, (a) The Claims Bureau shall include staff qualified in law, valuation, land titles, records management, economics, accountancy, information technology, mediation and other forms of dispute resolution, and in other technical and relevant fields. (b) The Cyprus Housing Bureau shall include staff qualified in housing development, architecture, construction, surveying, economics and finance, information technology, and in other technical and relevant fields. (c) The Compensation Bureau shall include staff qualified in property portfolio management and valuation, property acquisition and disposition, law, economics and finance, accountancy, information technology, and in other technical and relevant fields. When staffing the Claims Bureau and the Cyprus Housing Bureau, the director and relevant deputy directors shall strive to employ persons hailing from the Greek Cypriot constituent state and the Turkish Cypriot constituent state in similar numbers. When staffing and managing the Compensation Bureau and subsequently the Cyprus Compensation Trust, the director and relevant deputy director shall be guided by the commercial objective of the division to maximize shareholder value. Period of operation of the Property Board and Cyprus Compensation Fund Without prejudice to the provisions concerning the Cyprus Compensation Division, ten years after entry into force of the Foundation Agreement, the Property Board shall be wound up. If the Property Board by that date has

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Part I: Constitutional Issues not completed determination of all claims or any other task before it, the Supreme Court may extend the period of operation of the Property Board for one year at a time. In case of such an extension, the Supreme Court may order retention by the Property Board of specified assets to enable it to continue its work in accordance with these provisions. The Compensation Fund shall have no predetermined duration and shall be wound up only after having disposed of all properties in its portfolio, unless the Supreme Court determines otherwise. When the rest of the Property Board has been wound up, its financial and property assets shall be transferred to the Compensation Trust. Until all the compensation bonds have been redeemed, the Supreme Court shall review the situation every five years to determine if the Cyprus Compensation Fund should remain in operation. After that, it may behave as any private company and shall no longer be subject to Court review. The Property Board may decide, by majority of five to two in the Governing Council and subject to the approval of the executive heads of the constituent states acting by consensus, to wind itself up on a date earlier than ten years after commencement of its operations, provided that its work has been completed or appropriate provision has been made for transfer to a competent body of any outstanding functions or matters. The Supreme Court may, upon application by the Property Board or by the executive heads of the constituent states acting by consensus, extend the period of operation of a specific section or sections of the Property Board for one year at a time, in order to enable completion of a specified function, and may order retention by that section or sections of specified assets to enable the continuation of work. Notwithstanding any such limited extension of operation of a particular section or sections, the Property Board shall be considered to be wound up for the purposes of these provisions, unless the Supreme Court orders otherwise. For the purposes of hearing and determining disputes over claims, entitlements of dispossessed owners, current users or owners of improvements, property valuation, right of first refusal, or title to or other rights in respect of property, the relevant section of the Property Board shall continue in operation for as long as the Supreme Court deems fit. Prior to its winding-up, the Property Board shall make arrangements for the completion of any tasks or functions assigned to it under these provisions, including any claims or disputes which are pending or which may arise in future. For this purpose, it may refer or request the Supreme Court to assign specified claims or cases to other competent bodies or courts or to a section of the Property Board, which will continue in operation by order of the Supreme Court. The obligation to ensure or make arrangements for completion of any tasks or functions under these provisions shall also apply to any section of the Property Board which continues in operation for any extended period.

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In Search of a Solution Section B: Handling of property transferred to or via the Property Board Handling of property transferred to or via the Property Board The Property Board shall receive transfer of title to affected property which is: (a) Not claimed by a dispossessed owner within the time period set by these provisions for submission of claims; (b) Owned by a dispossessed owner who receives compensation from the Property Board or title to another property in exchange for his/her title; or (c) Owned by a dispossessed owner who disposed of his/her interest in an affected property of which s/he was the current user, in exchange for transfer of title to such affected property to the subsequent purchaser (or his/her successors in title) in accordance with Article 13 of Annex VII. In disposing of property transferred to it under these provisions, the Property Board shall, in this sequence: (a) Offer the property for sale to the current user at current value; (b) Offer the property for sale to persons hailing from the constituent state in which the property is located, at market value, including in exchange for compensation bonds and property appreciation certificates at their market value; (c) Use it as alternative accommodation; or (d) Otherwise dispose of it in a prudent manner, at market value, to generate funds for compensation purposes. In all cases and at all times, the Property Board shall supervise management of property transferred to it or otherwise under its control in a prudent manner and in accordance with these provisions. The Claims Bureau shall retain title to all properties in the Property Board’s portfolio until the Bureau is wound up, while the Compensation Bureau shall manage the portfolio. All funds generated from the sale or use of affected property held by the Property Board shall be deposited into the Compensation Fund. Section C: Decision-making and claims for affected property Decision-making The Claims Bureau shall aim to reach all decisions by consensus. If the members are unable to reach consensus on a decision, the decision shall be taken by majority vote. The Claims Bureau shall consider any relevant material or evidence put before it in respect of any claim for affected property or any other matter which is within its jurisdiction or decision-making power.

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Part I: Constitutional Issues Claims procedure A dispossessed owner shall be entitled to file a claim with the Property Board for recognition of his/her interest in or title to affected property. In filing a claim for recognition of an interest or title, a claimant shall also specify how s/he seeks to exercise his/her property rights, namely by way of: (a) Compensation; (b) Reinstatement; or (c) Sale, exchange or lease. A current user of an affected property who is also a dispossessed owner, or a person who owns a significant improvement to an affected property may apply to receive title to such properties. Claims or applications for transfer of title must be filed within a period of one year, commencing on a date to be determined by the Property Board which shall be no later than one year after entry into force of the Foundation Agreement. The decision fixing the relevant date shall be published in the Official Gazettes of the federal government and the constituent states, in the most widely circulated newspaper of each constituent state and in any other such appropriate manner as determined by the Property Board. A claim or application shall be filed together with certified copies of any available evidence of the claimant’s or applicant’s interest in or title to the affected property. Holders of a part interest in or title to an affected property shall, wherever possible, file joint claims. A dispossessed owner who does not file a claim within the stipulated period and can show good cause why s/he did not or was not able to do so, is entitled to compensation. Further detailed requirements for the filing and determination of claims and applications in respect of affected property shall be set out in rules, regulations, procedures, forms, evidence and any other instruments adopted by the Property Board in accordance with these provisions. Determination of claims and applications Upon receipt of any claim for affected property, the Claims Bureau shall, following any necessary investigation and verification, determine whether the claimant has a lawful interest in the property. Upon receipt of any application with respect to affected property, the Claims Bureau shall, following any necessary investigation and verification, determine whether the applicant has a sufficient interest in the property under these provisions. If the Claims Bureau determines that the claimant or applicant is not the sole dispossessed owner or person with an interest in the affected property, it shall make reasonable efforts to contact the other interested parties, including the current user, before deciding the claim or application.

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In Search of a Solution The Claims Bureau shall then determine whether the claimant or applicant is entitled to exercise his/her rights in the manner requested in the claim or otherwise under these provisions. In its decision, the Claims Bureau shall, if possible, state the name and interest of any other holder of a lawful interest in the property. Where it has been unable to locate or contact such persons before deciding the claim or application, it shall publish its decision in an appropriate manner. In its decision, the Claims Bureau shall also indicate the steps necessary for the execution or implementation of the decision and, where appropriate, shall order that they be taken within specified time frames. If the Claims Bureau decides that a claimant or applicant has no legal interest in the claimed affected property, it shall reject the claim or application. At the same time, it may decide on the interests of the other parties to the proceedings and issue orders with respect to the property as appropriate. The Claims Bureau shall deal, in the following order of priority, with (a) claims regarding affected property of dispossessed owners currently living in areas subject to territorial adjustment and the claims of the current users of those properties; (b) claims or applications of: i ii

dispossessed owners for compensation current users for transfer of title to the properties they are currently using in exchange for transfer of title to the Property Board of properties of which they were dispossessed, and iii persons who own significant improvements to affected properties in exchange for payment of the current value of the properties without the improvement; (c) claims of dispossessed owners of affected properties in areas subject to territorial adjustment (d) any other claims and applications. In doing so, it shall further prioritise decisions which shall have a positive economic impact. Decisions on reinstatement Upon determination that a property is eligible to be reinstated, the Claims Bureau shall inform the claimant of its decision. It shall hold the case as pending until all claims for reinstatement have been reviewed, in order to determine the priority for reinstatement in accordance with Article 16 of Annex VII. The Claims Bureau shall endeavour to determine the eligibility of all claims for reinstatement before issuing final decisions on reinstatement. If the determination of eligibility in some cases is delayed, because of exceptional 337

Part I: Constitutional Issues circumstances, the Claims Bureau may issue final decisions on reinstatement as soon as it has determined the eligibility of at least 90% of the claims for reinstatement. Reinstatement shall only be granted in the delayed cases if the agreed levels for reinstatement have not yet been reached, irrespective of the priority that the claimant might otherwise have had. The Claims Bureau shall issue final decisions on reinstatement of properties that are not subject to the agreed levels of reinstatement in Article 16 of Annex VII as soon as it has determined their eligibility for reinstatement. Upon issuing a final decision on reinstatement, the Claims Bureau shall inform the current user of the affected property of the decision, of his/her obligation to vacate the affected property and of his/her rights to alternative accommodation; it may also inform the authorities of the relevant constituent state responsible for enforcement and implementation of the decision. Reinstatement shall only occur after the current user has been provided with alternative accommodation or the final deadline for vacating the property as determined by the Claims Bureau in accordance with Attachment 3 has expired, whichever is the sooner. Standard form lease The Property Board shall provide on request a standard form of lease agreement. Sale, exchange and lease: other assistance The Property Board shall refer any interested party on request to a list of real estate agents of a high professional standard, who are acting in one or both constituent states and who can assist persons seeking advice regarding sale, exchange or lease transactions in one or both constituent states. Subject to these provisions, the Property Board’s involvement in a sale, exchange or lease transaction shall be limited to conveying information between the counterparts to the potential transaction. The Property Board shall not be responsible for negotiation or completion of contractual arrangements, nor any resulting dispute or loss. Section D: Compensation fund, bonds and property appreciation certificates Compensation Fund A Compensation Fund shall be established in the Central Bank of Cyprus and administered by the Compensation Bureau of the Property Board. The Fund shall receive all proceeds from the use or disposal of property that has been transferred to the Property Board. In addition, the federal government shall provide a first contribution of 100 million Cyprus pounds towards the initial capital of the Fund no later than 18 months, and if financially possible, 9 months, after entry into force of the Foundation Agreement, and shall seek a 338

In Search of a Solution contribution from international donors. This contribution shall be returned to the federal government after the bonds have been paid back. 41

Compensation bonds and property appreciation certificates Successful claimants for compensation shall first receive claim receipts, indicating the value of their holding in the Property Board’s portfolio. Claim receipts may be exchanged for compensation bonds and property appreciation certificates, five years after entry into force of the Foundation Agreement. The ratio of the nominal value of bonds to total current value of all properties in the portfolio of the Property Trust shall be fixed at 33.3% as of the date of entry into force of the Foundation Agreement. Compensation bonds shall be interest-bearing from the date of entry into force of the Foundation Agreement at a rate per annum equal to or greater than that applying to federal government bonds of equal maturation periods at the time of issuance of the bonds. Certificates shall be entitled to dividend if payable. Compensation bonds and property appreciation certificates may be used at their trading value on the day of the transaction by holders for the following purposes: (a) To purchase affected property from the holdings of the Property Board at market value; or (b) To procure the payment by the Property Board of a deposit for purchase of alternative accommodation on the open market; or (c) For sale to any person or institution, who thereby acquires all entitlements of the initial holder, provided that this person or institution or any representative thereof does not own a combined total of more than 10% of the outstanding bonds and property appreciation certificates. Persons or institutions shall have a duty to report their holdings to the Central Bank once these have exceeded a combined total of more than 5% of outstanding bonds and property appreciation certificates. The nominal value of compensation bonds at maturity to be guaranteed by the federal government. Compensation bonds shall mature 25 years after issuance and shall be redeemable for cash from the Compensation Trust. The bonds shall be callable at the discretion of the Compensation Trust at nominal value five years after entry into force of the Foundation Agreement. After the final maturity date on issued bonds, proceeds of any subsequent sale or lease of affected property from the holdings of the Compensation Trust. Measures in favour of current users Extension of deadlines for vacating affected property

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Part I: Constitutional Issues Property occupied by current users with sufficient financial means A current user of a property designated for reinstatement, with sufficient financial means, may apply to the Property Board for an extension to enable him/ her to continue to use the property for his/her own purposes for up to three years after the Claims Bureau’s decision. An application for an extension shall be granted by the Property Board unless and up to the time when it is found that the current user is not using the property for his/her own purposes, or that the current user has immediate access to alternative accommodation. The Property Board may extend the time limit under this Article in cases of urgent humanitarian need, as determined by the Property Board. The current user shall pay market rent to the Property Board for the period of continued use of the affected property from the date of the Property Board’s decision on eligibility for reinstatement. At the end of the period fixed by the Property Board, the current user shall vacate the affected property. Property occupied by current users without sufficient financial means A current user of a property designated for reinstatement, without sufficient financial means, who is a Cypriot citizen and is using the property for his/her own purposes, shall not be required to vacate the property until alternative accommodation is made available for them or until they are able, including through the provision of preferential loans or other assistance, to buy or lease on the market a property which meets the standard of alternative accommodation. Such current users may apply to the Property Board for: (a) Assistance to purchase or lease alternative accommodation, in the form of preferential loans under these provisions; or (b) In cases of urgent humanitarian need and where not eligible for preferential loans, the allocation of low-cost or cost-free alternative accommodation from the holdings of the Property Board. The Property Board shall grant such applications to persons meeting its criteria, provided that alternative accommodation is available in its holdings. Current users of properties designated for reinstatement, without sufficient financial means, who are not citizens of Cyprus but enjoy permanent residence and are using the property for their own purposes, may apply for social housing or other housing assistance, or for financial assistance from the constituent state in which they enjoy permanent residence. Such current users shall not be required to vacate the property until such housing or financial assistance is available, up to a maximum of two years after the Property Board’s decision on eligibility for reinstatement. The Property Board shall charge rent to any current user without sufficient

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In Search of a Solution financial means, up to the maximum amount possible based on his/her income and wealth. Payment of rent to dispossessed owner up to reinstatement The Property Board shall pay market rent to the dispossessed owner, effective from the date of the decision of the Property Board that the property is eligible for reinstatement up to the date on which reinstatement occurs. Section E: Preferential loans Preferential loans The Property Board shall oversee and administer a preferential loans scheme, including mortgage guarantee and mortgage subsidy systems, with the assistance of international and local banks, the federal government, the constituent states and other donors. The federal government shall provide funds from its budget to support the scheme. A separate branch, the Cyprus Mortgage Bureau, shall be established within the Cyprus Housing Bureau to administer the scheme. Under this scheme, preferential loans shall be made available on favourable terms for dispossessed owners, current users of affected property and owners of significant improvements to affected property who are Cypriot citizens and who are without sufficient financial means, in order to facilitate the purchase or construction of property (including the purchase of significantly improved property) or make payments required under these provisions. Loans under this scheme will be made available to people who meet the criteria on condition that they agree to a 20-year moratorium on sale of any property which they purchased or reconstructed or for which they received title after making a payment to the Property Board with preferential loan funds. This moratorium period may be shortened or waived with the authorisation of the Property Board. The Mortgage Bureau shall determine criteria for mortgage guarantee applications. Criteria shall include a maximum property purchase price of 40,000 Cyprus pounds, which may be adjusted as appropriate. Applications will be processed by the bank providing the loan. In case of default, the Mortgage Board shall pay the loss on the loan to the bank providing the loan, up to 30% of the loan amount. The Mortgage Bureau shall build up a guarantee fund to cover the default risk. The fund shall be based on an initial endowment provided by international donors or, if such funding is not available, by the federal government. The capital of the guarantee fund shall be invested in government bonds and shall earn interest at a compound annual rate. The federal government shall guarantee the fund and seek ultimate backing by international public financial institutions. The Mortgage Bureau shall also determine criteria for mortgage interest subsidy applications. The criteria shall include a maximum home purchase price of CYP 30,000 (which should grow at an annual rate of 6%), and a 341

Part I: Constitutional Issues household wealth ceiling of CYP 6000. The amount of the annual subsidy on the outstanding loan amount for which a household will be eligible will depend on household income and will vary between 1% and 3% of the outstanding loan amount. The mortgage interest subsidy shall only apply for loans provided within five years after entry into force of the Foundation Agreement and shall have a fixed duration of eight years. Applications will be processed by the bank providing the loan. The federal government shall seek grants or low-interest loans from international donors for these subsidies. Section F: Right of first refusal Right of first refusal for current user and others in sales of affected property For a transitional period of 20 years after entry into force of the Foundation Agreement, any sale of an affected property to a person who has not enjoyed permanent residence for at least three years in the constituent state in which such property is located, is subject to a right of first refusal by a current user, who is a Cypriot citizen, at the proposed contract price. Such right shall apply: (a) For as long as the current user continues to use such property, and (b) For five years thereafter, if the current user has vacated it to allow reinstatement of the dispossessed owner. If the current user does not exercise the right of first refusal under the previous paragraph, any other person hailing from the constituent state in which the relevant property is located shall have a secondary right of first refusal, at the contract price. Rights of first refusal under this Article may be exercised within 45 days after the dispossessed owner signs a sales contract with a potential purchaser, and at the same price as stated in any such contract. Any dispute regarding rights of first refusal shall be referred to the Property Board. The constituent states shall enact harmonised legislation as required to regulate and ensure enforcement of contracts concluded under these provisions for rights of first refusal, and otherwise between current users and persons hailing from different constituent states. Arrangements for recovering proceeds, goods or crops produced on affected property The Property Board shall make adequate and fair provision for current users of and owners of significant improvements to affected property that is currently being used for income generating purposes to allow them to recover the proceeds, goods or crops generated after reinstatement of the property, where the relevant production began one year before the date fixed for reinstate-

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In Search of a Solution ment and the nature of these proceeds, goods or crops does not allow them to be handed over immediately prior to reinstatement. Property located in areas subject to territorial adjustment Application of these provisions to property in areas subject to territorial adjustment The Articles in this Attachment shall prevail over the other provisions of Annex VII and its other attachments in relation to affected property and other property in areas subject to territorial adjustment. Where there are no specific provisions in this Attachment, the other provisions of Annex VII and its other attachments shall apply. Reinstatement of dispossessed owners Subject to the modalities and conditions established in this Attachment, any dispossessed owner of a property in areas subject to territorial adjustment shall 42 be entitled to reinstatement. The Property Board shall issue final decisions on reinstatement of properties located in areas subject to territorial adjustment, as soon as it has determined that property is eligible for reinstatement and shall order that such reinstatement take place as soon as the current user has been relocated, but no later than three years after entry into force of the Foundation Agreement. The general moratorium and agreed maximum levels on reinstatement under Annex VII shall not apply to areas subject to territorial adjustment nor shall provisions permitting transfer of properties to a current user or a subsequent purchaser. The Property Board shall deal with claims regarding affected property of dispossessed owners currently living in areas subject to territorial adjustment, the claims of the current users of those properties and the claims of dispossessed owners of affected properties in areas subject to territorial adjustment, in that order of priority. Improved properties The dispossessed owner of any improved property shall pay the market value of any improvement worth more than 10% of the value of the property in its original state, or any improvement worth 3000 Cyprus pounds, whichever is the lower, to the Property Board. The owner of the improvement is entitled to seek compensation from the Property Board for its market value or actual cost (if worth more than 3000 Cyprus pounds). If the dispossessed owner satisfies the Property Board that an improvement worth less than the value of the property in its original state is inappropriate for his/her intended use of the property which is similar to the use prior to dispossession, the dispossessed owner shall not be required to pay for the

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Part I: Constitutional Issues improvement. The Property Board may recover from the dispossessed owner any compensation paid to the improver if it subsequently finds that the dispossessed owner makes use of the improvement. Where the market value of the improvement is greater than the value of the property in its original state and the dispossessed owner is not prepared to pay for it, the owner of the improvement may apply to receive title to the property in exchange for payment of the value of the property in its original state. The dispossessed owner shall retain a right of first refusal for a period of 20 years after entry into force of the Foundation Agreement, for any contract for sale, exchange or long-term lease of the property, at the proposed contract price. Where the market value of the improvement is greater than the value of the property in its original state and both the dispossessed owner and the owner of the significant improvement seek title to the property in exchange for the value of the significant improvement or the value of the affected property without the improvement, respectively, the Property Board shall facilitate an amicable solution between the dispossessed owner and the owner of the significant improvement regarding title and/or future use of the improvement. If no amicable solution can be reached, the Property Board shall decide whether immediately to grant reinstatement to the dispossessed owner or to first grant a lease of one to twenty years to the owner of the significant 43 improvement, as appropriate in the particular circumstances of the case. Owners of property in areas subject to territorial adjustment who wish to leave An owner of property in an area subject to territorial adjustment who vacates such property after entry into force of the Foundation Agreement may claim compensation from the Property Board for such property at current value in exchange for his/her title to such property, provided s/he can produce evidence of ownership before 1974 or of bona fide transfer from the 1974 owner. Current users of property in areas subject to territorial adjustment A current user of property in an area subject to territorial adjustment who is a Cypriot citizen may choose to: (a) Remain in that area and purchase property there; (b) Receive alternative accommodation in that area, if entitled under these provisions (see Attachment 3); (c) Claim reinstatement of his/her own affected property; or (d) Be relocated in the other constituent state and purchase property or receive alternative accommodation there, if entitled under these provisions (see Annex VI). A current user who is not a Cypriot citizen may seek housing or financial assistance from the constituent state in which s/he enjoys permanent residence or apply for assistance according to Annex VI.

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In Search of a Solution Letter to the President of the European Court of Human Rights [to be sent upon entry into force of Foundation Agreement] Excellency, We wish to inform you that, having been approved at separate simultaneous referenda, the Foundation Agreement between the Greek Cypriots and the Turkish Cypriots has entered into force, and a new state of affairs has come into being in Cyprus. Accordingly, the United Cyprus Republic is an independent and sovereign state with a single international legal personality and a federal government and consists of two constituent states, namely the Greek Cypriot State and the Turkish Cypriot State. The European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols, are in force for the United Cyprus Republic. The Foundation Agreement resolves in a comprehensive manner all issues that have divided Greek Cypriots and Turkish Cypriots in the past, including all property questions. We would like to bring to your attention the fact that the Foundation Agreement provides a domestic remedy for the solution of all questions related to affected property in Cyprus, and to inform you that the United Cyprus Republic shall be the sole responsible state party concerning such matters. Moreover, pursuant to Article 37 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Rule 43 of the Rules of Court, we request the Court to strike out any proceedings currently before it concerning affected property in Cyprus, in order to allow the domestic mechanism established to solve these cases to proceed. We would be grateful if you could bring this request to the attention of the members of the Court. Please accept, Excellency, the assurances of our highest consideration. Co-President

Co-President ANNEX IV: RECONCILIATION COMMISSION

Establishment There shall be an independent, impartial Reconciliation Commission. The authorities of the federal government and the constituent states shall render the Commission full cooperation and shall issue instructions to that effect to all concerned. Aims With the objective of promoting understanding, tolerance and mutual respect between Greek Cypriots and Turkish Cypriots, the Reconciliation Commission shall, inter alia: (a) Promote a dispassionate dialogue between Greek Cypriots and Turkish

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Part I: Constitutional Issues Cypriots regarding the past, by addressing, inter alia, historical perspectives, experiences, and memories; Prepare a comprehensive report on the history of the Cyprus Problem as experienced and interpreted by Greek Cypriots and Turkish Cypriots; Make specific recommendations for action by the federal government and the constituent states aimed at promoting reconciliation, including guidelines for publications and school textbooks so as to promote mutual understanding of different perspectives on the past; Make recommendations for the implementation of the requirement in the Constitution for the teaching of the official languages to all secondary school students; and Make recommendations on guidelines for the observance of secular public holidays by the constituent states.

(b) (c)

(d)

(e)

ANNEX V: COMING INTO BEING OF THE NEW STATE OF AFFAIRS Entry into force of the Foundation Agreement The Foundation Agreement shall enter into force, and bring into being a new state of affairs, following its approval by separate simultaneous referenda on [X] April [2004] asking the following question: ‘Do you approve the Foundation Agreement with all its Annexes, as well as the constitution of the Greek Cypriot/Turkish Cypriot State and the provisions as to the laws to be in force, to bring into being a new state of affairs in which Cyprus joins the European Union united? Yes [ ] No [ ]’ and the signature by Greece, Turkey and the United Kingdom no later than [Y] April of the attached Treaty on matters related to the new state of affairs in Cyprus at a signing ceremony in the presence of the Secretary-General of the United Nations (or his representative). Should the Foundation Agreement not be approved at the separate simultaneous referenda, or any guarantor fail to sign the Treaty on matters related to the new state of affairs in Cyprus by [Y] April 2004, it shall be null and void, and have no legal effect.

Entry into force of the Treaty between Cyprus, Greece, Turkey and the United Kingdom on matters related to the new state of affairs in Cyprus Immediately upon entry into force of the Foundation Agreement, the Co-

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In Search of a Solution Presidents of the United Cyprus Republic shall sign into force the Treaty with Greece, Turkey and the United Kingdom on matters related to the new state of affairs in Cyprus, which shall be registered as an international treaty in accordance with Article 102 of the Charter of the United Nations. The United Nations Upon entry into force of the Foundation Agreement, the Co-Presidents shall through the attached letter inform the United Nations that henceforth the membership rights and obligations of Cyprus in the United Nations shall be exercised in accordance with the new state of affairs. The agreed flag of the United Cyprus Republic shall be raised at United Nations Headquarters. The Council of Europe Upon entry into force of the Foundation Agreement, the Co-Presidents shall through the attached letter inform the Council of Europe that henceforth the membership rights and obligations of Cyprus in the Council of Europe shall be exercised in accordance with the new state of affairs and shall request the Parliamentary Assembly and the Committee of Ministers to endorse the Foundation Agreement. The European Union Upon entry into force of the Foundation Agreement, the Co-Presidents shall through the attached letter inform the European Union of the coming into being of the new state of affairs and the commitment of the United Cyprus Republic to assume all rights and obligations arising from the Treaty of Accession, and request the European Union to endorse the Foundation Agreement and to accommodate its terms and adopt special measures for the Turkish Cypriot State. Letter to the Secretary-General of the United Nations [to be sent upon entry into force of the Foundation Agreement] Excellency, We wish to inform you that, having been approved at separate simultaneous referenda by Greek Cypriots and Turkish Cypriots exercising their inherent constitutive power, the Foundation Agreement and all its annexes between the Greek Cypriots and the Turkish Cypriots which has entered into force, and a new state of affairs has come into being in Cyprus. Accordingly, the United Cyprus Republic is an independent and sovereign state with a single international legal personality and a federal government and consists of two equal constituent states, namely the Greek Cypriot State and the Turkish Cypriot State. We solemnly declare that henceforth, the membership rights and obliga347

Part I: Constitutional Issues tions of Cyprus in the United Nations shall be exercised in accordance with the new state of affairs and the Foundation Agreement and all its annexes. We should be grateful if this letter were circulated to the Member States of the United Nations. Please accept, Excellency, the assurances of our highest consideration. Co-President

Co-President

Letter to the President of the Council of the European Union [to be sent upon entry into force of the Foundation Agreement] Mr President, We wish to inform you that, having been approved at separate simultaneous referenda, the Foundation Agreement between the Greek Cypriots and the Turkish Cypriots has entered into force, and a new state of affairs has come into being in Cyprus. Accordingly, the United Cyprus Republic is an independent and sovereign state with a single international legal personality and a federal government and consists of two constituent states, namely the Greek Cypriot State and the Turkish Cypriot State. We solemnly declare that the United Cyprus Republic is ready to assume all rights and obligations arising from the Treaty of Accession of 16 April 2003. Referring to the special powers delegated to the Council under Article 4 of Protocol 10 of that treaty and to the conclusions of the European Council of 12 December 2003, and bearing in mind that the Foundation Agreement is in line with the principles on which the European Union is founded, we wish to request the European Union to endorse the Foundation Agreement and to accommodate its terms by adapting the terms of Accession before 1 May 2004 in a way that ensures the legal security of the Foundation Agreement within Europe’s legal order. We furthermore request the Council of the European Union to take appropriate measures regarding the application of the acquis communautaire in the Turkish Cypriot State in phases that are aligned to the level of harmonization and administrative capacity, and to adopt special measures, including financial assistance, for the development of the Turkish Cypriot State. Please accept, Excellency, the assurances of our highest consideration. Co-President

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Co-President

In Search of a Solution Anthem of the United Cyprus Republic

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Letter to the Secretary-General of the Council of Europe [to be sent upon entry into force of Foundation Agreement] Excellency, We wish to inform you that, having been approved at separate simultaneous referenda, the Foundation Agreement between the Greek Cypriots and the Turkish Cypriots has entered into force, and a new state of affairs has come into being in Cyprus. Accordingly, the United Cyprus Republic is an independent and sovereign state with a single international legal personality and a federal government and consists of two constituent states, namely the Greek Cypriot State and the Turkish Cypriot State. The European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols are in force for the United Cyprus Republic. We solemnly declare that henceforth, the membership rights and obliga-

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In Search of a Solution tions of Cyprus in the Council of Europe shall be exercised in accordance with the new state of affairs. We also wish to inform you that the Foundation Agreement resolves in a comprehensive manner all issues that have divided Greek Cypriots and Turkish Cypriots in the past, including all property questions. We would like to bring to your attention the fact that the Foundation Agreement provides a domestic remedy for the solution of all questions related to affected property in Cyprus, and to inform you that the United Cyprus Republic shall be the sole responsible state party concerning such matters. Moreover, pursuant to Article 37 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Rule 43 of the Rules of Court, we request the Court to strike out any proceedings currently before it concerning affected property in Cyprus, in order to allow the domestic mechanism established to solve these cases to proceed. We would be grateful if you would bring this letter to the attention of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, and we request that the Parliamentary Assembly and the Committee of Ministers endorse the Foundation Agreement. Please accept, Excellency, the assurances of our highest consideration. Co-President

Co-President

Treaty between Cyprus, Greece, Turkey and the United Kingdom related to the new state of affairs in Cyprus The United Cyprus Republic, the Hellenic Republic, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland, (i) Welcoming the comprehensive settlement of the Cyprus problem and the approval of the Foundation Agreement through separate referenda by the Greek Cypriots and the Turkish Cypriots, and the forthcoming accession of Cyprus to the European Union (ii) Desiring to contribute to a peaceful and harmonious future for Cyprus and for Cyprus to be a bridge of friendship between Greece and Turkey within a peaceful environment in the Eastern Mediterranean and (iii) Committed to international law and the principles of the United Nations Adopt the following provisions: Approval of Foundation Agreement The annexed Foundation Agreement is herewith approved and agreed and shall be considered an integral part of this Treaty.

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Part I: Constitutional Issues Monitoring Committee The parties agree on the creation of a Monitoring Committee composed of one representative of each guarantor power, two representatives of the federal government (one hailing from each constituent state), one representative of each constituent state and, pursuant to a decision of the United Nations Security Council, one representative of the United Nations who shall chair the committee. The Monitoring Committee shall monitor the implementation of the Settlement, and may make recommendations regarding any development which may endanger their implementation. The parties undertake to cooperate with the United Nations operation in Cyprus and to act in good faith on the recommendations of the Monitoring Committee. The Monitoring Committee shall request the United Nations to bring to its attention any significant change the United Nations may wish to make in its peacekeeping operation. Additional Protocol to the Treaty of Establishment The annexed Additional Protocol to the Treaty of Establishment is herewith approved, and shall enter into force on the day following that on which the United Kingdom has notified the other parties of the completion of its constitutional requirements for the implementation of the Protocol. Additional Protocol to the Treaty of Guarantee The annexed Additional Protocol to the Treaty of Guarantee is herewith approved and agreed, and shall enter into force together with this Treaty. Additional Protocol to the Treaty of Alliance The annexed Additional Protocol to the Treaty of Alliance is herewith approved and agreed by the parties concerned, and shall enter into force for them upon signature together with this Treaty. Transitional Security Arrangements The annexed Transitional Security Arrangements are herewith approved and agreed by the parties concerned, and shall enter into force for them upon signature together with this Treaty. Article 6A: Other treaties between Greece, Turkey and Cyprus Greece and Turkey agree not to exercise their right to refuse a request from the United Cyprus Republic, referred to in Article 48.6 of the Constitution, that a treaty binding on the United Cyprus Republic shall be modified so that it will only apply in the territory of one constituent state.

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In Search of a Solution Reservations and declarations to international instruments The parties to this Treaty shall withdraw or rectify any declarations or reservations which they have made to international treaties in so far as such declarations or reservations arose out of their position regarding the Cyprus problem. Entry into force This treaty shall enter into force upon signature. The parties shall proceed as soon as possible to the registration of this Treaty with the Secretariat of the United Nations, in accordance with Article 102 of the Charter of the United Nations. Done at [ ] this [ ] day of [ ] 2004 in four copies in the English language. Signature United Cyprus Republic

Signature Hellenic Republic

Signature Republic of Turkey

Signature United Kingdom of Great Britain and Northern Ireland

Witnessed by Kofi A. Annan (or his representative) Secretary-General of the United Nations (or his representative)

ANNEX VI: ADDITIONAL PROTOCOL TO THE TREATY OF ESTABLISHMENT The United Kingdom of Great Britain and Northern Ireland, Cyprus, Greece and Turkey Desiring to make provision to give effect to the intention of the Government of the United Kingdom to relinquish sovereignty over parts of the Akrotiri Sovereign Base Area and Dhekelia Sovereign Base Area, Have agreed as follows: The areas in respect of which the United Kingdom relinquishes its sovereignty are described in the Codicil to this Protocol. Those areas are in this Protocol referred to as the relinquished areas. All international obligations and responsibilities of the United Kingdom in relation to the relinquished areas shall henceforth, insofar as they may be held to have application to the Akrotiri Sovereign Base Area or the Dhekelia Sovereign Base Area, be assumed by the United Cyprus Republic. All international rights and benefits heretofore enjoyed by the United Kingdom by virtue of their application to the relinquished areas shall henceforth be enjoyed by the United Cyprus Republic. All legal liabilities and obligations incurred by or on behalf of the Admin-

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Part I: Constitutional Issues istration of the Sovereign Base Areas or the Government of the United Kingdom in relation to the relinquished areas and subsisting immediately before the date of entry into force of this Protocol shall have the effect as from that date as if they were incurred by or on behalf of Cyprus. Immovable property in the relinquished areas held by the Government of the United Kingdom shall be subject to the provisions of Annex B, Part III of the Treaty of Establishment. Other immovable property in the relinquished areas which became the property of the Sovereign Base Areas Administration pursuant to paragraph 2 of Section 1 of Annex E to the Treaty of Establishment shall on the date of entry into force of this Protocol become the property of Cyprus. Section 3 of Annex A to the Treaty of Establishment shall be replaced by the following: ‘Section 3 Cyprus shall not claim, as part of its territorial sea, waters lying between the lines described in the report referred to in the Additional Protocol to this Treaty.’ The lines referred to in Section 3, as amended, of the Treaty of Establishment, which delimit the waters adjacent to the Sovereign Base Areas that the United Cyprus Republic shall not claim as part of its territorial sea, shall be set out in a report to be prepared by two duly qualified person to be designated by the Governments of the United Cyprus Republic and of the United Kingdom. They shall begin the work not later than one month after the entry into force of this Protocol and complete it as soon as possible and in any event within a period of nine months. The designated person may appoint technical advisers to assist them. They shall report to the appropriate authorities of the United Kingdom and Cyprus upon completion of the work. The United Kingdom shall continue to enjoy complete and unimpeded access for any purpose whatsoever to the waters lying between the waters which the United Cyprus Republic shall not claim adjacent to the eastern part of the Dhekelia Sovereign Base Area adjoining the sea (which part is marked on Map A with an area of 16.10 sq. km), and the waters which the United Cyprus Republic shall not claim adjacent to the western part of the Dhekelia Sovereign Base Area adjoining the sea (which is marked on Map A with an area of 5.01 sq km). The Sotira locality, in which minor routine training is permitted pursuant to paragraph 2 of Section 3 of Part IV of Annex B to the Treaty of Establishment, shall be extended south of Sotira, Sterakovou and Paramali, the additional area comprising land north of the Limassol–Paphos highway. The new boundaries of the Sotira locality shall be defined and marked on maps by the person to be designated by the Government of the United Kingdom under

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In Search of a Solution Section 2 of the Codicil to this Protocol. The United Kingdom and Cyprus may conclude an Exchange of Notes with respect to: (a) arrangements concerning rights of access to power cables and pipelines by the Administration of the Sovereign Base Areas or a United Kingdom authority; and (b) arrangements with regard to the nationality of persons affected by the relinquishment of the relinquished areas. Any dispute about the interpretation or application of this Protocol shall be resolved by consultations and shall not be referred to any international tribunal or third party for settlement. This Protocol shall enter into force on the day following that on which the United Kingdom notifies the other parties that it has completed its constitutional requirements for the implementation of this Protocol. Done at [ ] this [ ] day of [ ] 2004 in four copies in the English language. Signature United Kingdom of Great Britain and Northern Ireland

Signature United Cyprus Republic

Signature Hellenic Republic

Signature Republic of Turkey

ANNEX VI: ADDITIONAL PROTOCOL TO THE TREATY OF GUARANTEE Cyprus, Greece, Turkey and the United Kingdom of Great Britain and Northern Ireland have agreed as follows: The Treaty of Guarantee shall apply mutatis mutandis to the new state of affairs established in the Foundation Agreement and the Constitution of the United Cyprus Republic, thereby covering, in addition to the independence, territorial integrity, security and constitutional order of the United Cyprus Republic, the territorial integrity, security and constitutional order of its constituent states. ‘Constitutional order’ shall mean the Constitution of the United Cyprus Republic and, as the case may be, the Constitution of each constituent state, including any amendments to any of them in accordance with the provisions for amendment laid down in the relevant constitution. This Protocol shall enter into force upon signature. Done at [ ] this [ ] day of [ ] 2004 in four copies in the English language. Signature United Cyprus Republic

Signature Hellenic Republic

Signature Republic of Turkey

Signature United Kingdom of Great Britain and Northern Ireland

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Part I: Constitutional Issues ANNEX VIII: ADDITIONAL PROTOCOL TO THE TREATY OF ALLIANCE Cyprus, Greece and Turkey (i) Bearing in mind that in accordance with the Foundation Agreement and its Constitution, Cyprus shall be demilitarised (ii) Reaffirming their pledge to resist any attack or aggression against the independence or the territorial integrity of Cyprus Have agreed as follows: The Treaty of Alliance shall apply and operate mutatis mutandis in accordance with the new state of affairs established in the Foundation Agreement and the Constitution of the United Cyprus Republic, taking into account in particular the demilitarisation of Cyprus. There shall be no Tripartite Headquarters. The provisions of the Treaty of Alliance shall apply mutatis mutandis to the commanders of the Greek and Turkish contingents, who shall consult and cooperate in the performance of their functions pursuant to the Treaty. They shall exchange liaison officers, conduct exchange visits, and invite each other to observe military exercises. The Greek and Turkish contingents, shall be permitted to be stationed under the Treaty of Alliance in the Greek Cypriot State and the Turkish Cypriot State respectively. Without prejudice to the relevant provisions in Additional Protocol I to the Treaty of Alliance, the Greek and Turkish contingents shall, for a transitional period, not exceed 6000 all ranks until 1 January 2011, and 3000 all ranks thereafter until 1 January 2018 or Turkey’s accession to the European Union, whichever is sooner. Thereafter, Cyprus, Greece and Turkey shall review troop levels every five years with the objective of total withdrawal. This will in no way undermine the provisions of the Treaty of Alliance and its Additional Protocols, and the rights and responsibilities conferred thereby. The composition, equipment, locations and activities of the Greek and Turkish contingents shall be in accordance with the Codicil to this Additional Protocol, and equipment levels shall be reduced appropriately with the reductions in troop levels referred to in paragraph 2. Cyprus, Greece and Turkey shall review this Protocol and, in particular, the permissible number of troops to be stationed under the Treaty of Alliance no later than 1 June 2010. This Protocol shall enter into force upon signature and shall have precedence over other provisions of the Treaty of Alliance. Done at [ ] this [ ] day of [ ] 2004 in four copies in the English language. Signature United Cyprus Republic 356

Signature Hellenic Republic

Signature Republic of Turkey

In Search of a Solution Codicil: Composition, equipment, locations and activities of Greek and Turkish contingents Composition Each contingent may be structured to include the following capabilities within the permissible numbers and the overall limitations placed on weapons and equipment: a headquarters element, armour, reconnaissance, infantry, field engineers, artillery, signals, aviation, air defence, logistic, administrative and medical support. In the interests of transparency and mutual confidence, Greece and Turkey shall inform Cyprus, each other and the United Nations of the detailed organisation, structure, weapons and equipment of their contingents. Permissible weapon and equipment holdings Each contingent may station only the following weapons and equipment up to the maximum limits stated below: Type of weapon/equipment Battle tanks (medium) Infantry fighting vehicles (with main gun up to 25 mm) Towed artillery pieces (up to 155 mm caliber) Air defence missiles (short range up to 7000m) Transport helicopters Light helicopters

Maximum number 50 180

Remarks Up to 55 tonnes Includes armoured personnel carriers

18 18 6 4

Light armoured vehicles

17

Air defence cannons (up to 45 mm caliber)

16

Utility type, unarmed – up to 12 passengers Light observation/liaison type, unarmed – up to 6 passengers Reconnaissance type – main gun up to 90 mm

Activities The contingents shall be restricted to typical peacetime activities for formed military units, mainly encompassing training within the compounds and military quarters, maintenance of equipment and material, ceremonies and parades and training in designated training fields. 272. Within three months of entry into force of the Foundation Agreement, Greece and Turkey shall inform Cyprus, each other, and the United Nations of the precise location and size of their respective training fields 357

Part I: Constitutional Issues and designated military facilities, as well as the number of troops to be deployed in each facility. They shall further inform Cyprus, each other, and the United Nations, in advance, of any changes to the deployment thereafter. 273. Without prejudice to the Treaty of Establishment, any existing military facilities not designated in accordance with this Article shall be dismantled or converted for exclusive civilian use, unless otherwise agreed between Cyprus, Greece and Turkey or made available to the United Nations’ peacekeeping operation. Movement The contingents shall move troops in the constituent state in which they are located by the most direct route between points of embarkation, garrisons and training areas and shall not approach the boundary between the constituent states, or enter areas which prior to entry into force of the Foundation Agreement were within the buffer zone, or the areas of the Greek Cypriot State which, pursuant to the Foundation Agreement, are or have been subject to territorial adjustment, or the area of the Turkish Cypriot State south of the highway connecting north Nicosia and Famagusta, as defined in Article 4, unless the existing road and port infrastructure necessitates otherwise. Notice In the interest of transparency and mutual confidence, the contingents shall inform each other and the United Nations in writing at least 48 hours in advance of the timing, location and purpose of any significant ground, air or maritime movement of troops, including for field training. This shall apply to movements of four or more military vehicles, three or more military aircraft flying together in a single movement, one or more military vessels, or 100 or more troops for whatever reason by any means of transportation. When the purpose of the movement is for field exercises, the notice shall be given at least 72 hours in advance and shall include other relevant information about the main activities and purpose of the exercise (for example, live fire training, movement of tanks or artillery 44 pieces, manoeuvres of infantry, etc.) ANNEX IX: TRANSITIONAL SECURITY ARRANGEMENTS Dissolution of Greek Cypriot and Turkish Cypriot forces, including reserve units All Greek Cypriot and Turkish Cypriot forces, including reserve units, shall be dissolved, and their arms removed from the territory of the United Cyprus Republic, in accordance with the following timetable (based on the day of entry into force of the Foundation Agreement (‘A-Day’):

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In Search of a Solution (a) (b) (c) (d)

From A-Day + 150 to A-Day + 270: 20 per cent; (4 months) From A-Day + 271 to A-Day + 450: 25 per cent; (6 months) From A-Day + 451 to A-Day + 630: 25 per cent; (6 months) From A-Day + 631 to A-Day + 870: 30 per cent; (8 months)

Adjustment of Greek and Turkish forces Greek and Turkish forces and armaments shall be redeployed to the locations and facilities designated in accordance with the Codicil to the Additional Protocol to the Treaty of Alliance and adjusted to agreed levels. Any excess forces and armaments shall be withdrawn, in accordance with the following timetable (based on the day of entry into force of the Foundation Agreement (‘A-Day’): (a) (b) (c) (d)

From A-Day + 150 to A-Day + 270: 20 per cent; (4 months) From A-Day + 271 to A-Day + 450: 25 per cent; (6 months) From A-Day + 451 to A-Day + 630: 25 per cent; (6 months) From A-Day + 631 to A-Day + 870: 30 per cent (8 months)

Redeployment from areas subject to territorial adjustment prior to transfer of administration Notwithstanding the above, any forces and armaments other than United Nations peacekeeping forces shall be redeployed so as to vacate: (a) a zone extending 1000 metres from either side of the August 1974 cease-fire lines, in an initial disengagement of forces deployed along that line, within 90 days of entry into force of the Foundation Agreement; (b) an area subject to territorial adjustment of any forces and armaments no later than two weeks prior to the date agreed in the Foundation Agreement for handover to the entitled constituent state or the assumption of territorial responsibility by the United Nations. (c) The relevant forces shall be responsible for the clearance of areas that they have mined. All mine clearance shall be conducted in consultation and cooperation with the United Nations. To the extent possible, clearance of mines in the 1000 metre zone shall be completed prior to the date of redeployment. All remaining mined areas shall be fully marked and fenced before that date. Upon redeployment, all relevant records, technical information and maps concerning such mined areas shall be handed over to the United Nations in conformity with the technical annex of Amended Protocol II of the Convention on Certain Conventional Weapons.

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Part I: Constitutional Issues Draft act of adaptation of the terms of accession of the United Cyprus Republic to the European Union THE COUNCIL OF THE EUROPEAN UNION, Having regard to Protocol No. 10 of the Act of Accession 2003, and in particular Article 4 thereof, Having regard to the proposal from the Commission, 1. Taking into account the approval of the Foundation Agreement by the Greek Cypriots and the Turkish Cypriots on 20 April 2004, 2. Taking into account the Treaties of Guarantee and Alliance, the Additional Protocol thereto, and the Treaty of Establishment, 3. Bearing in mind and respecting the demilitarisation of Cyprus, 4. Considering that the Act of Accession shall not prevent the implementation of the Foundation Agreement, and shall accommodate its terms in line with the principles of which the European Union is founded, 5. Recalling that the European Union’s mission is peaceful cooperation of states and citizens, founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States and which have found their expression in the Foundation Agreement which introduces a new state of affairs in Cyprus and allows its peaceful integration into the Union, 6. Underlining that the political equality of Greek Cypriots and Turkish Cypriots, the equal status of the two constituent states, and the prohibition on any unilateral change to the state of affairs established by the Foundation Agreement, fall within the terms of Article 6 (1) of the Treaty of the European Union, 7. Recognizing the particular national identity of Cyprus, and the need to protect the balance between Greek Cypriots and Turkish Cypriots in Cyprus, the bi-zonal character of the United Cyprus Republic and the distinct identity and integrity of the constituent states, which require certain safeguards and temporary restrictions on the right of residence of Cypriot citizens as well as citizens of Greece and Turkey, 8. Considering that the main articles of the Foundation Agreement form part of the national identity of the United Cyprus Republic, which the European Union shall respect, 9. Bearing in mind that the United Cyprus Republic shall take all appropriate measures, whether in general or in particular, to ensure the fulfilment of the obligations arising out of European Union membership, in line with the specifications of the Act of Accession and this Act 10. Underlining that accession to the European Union shall benefit Greek Cypriots and Turkish Cypriots alike and promote development to help reduce economic disparities

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In Search of a Solution 11. Being convinced that the economic disparities between the Turkish constituent state and the other Member States as well as between the two constituent states necessitate authorisation procedures of the acquisition of property in the Turkish Cypriot constituent state in order to avoid unacceptable sudden price increases and large scale buy-out of land, 12. Being further convinced that the economic situation in the Turkish Cypriot constituent state may also necessitate the adoption of special safeguard measures for a limited period of time in order to protect certain sectors of its economy, 13. Taking into account the special relations and strong ties of Greek Cypriots and Turkish Cypriots with Greece and Turkey respectively, 14. Bearing in mind that, as a European Union Member State, Cyprus shall fulfil its obligations arising from the Association Agreement between Turkey and the European Communities of 1963, its additional Protocol and the decisions taken by the Association organs including the decision establishing a Customs Union between Turkey and the European Union, thereby according European Union treatment to Turkey in the fields where this is provided for, 15. Wishing to accord, to the extent possible with the European Union membership of Cyprus, similar rights of Greek and Turkish nationals visà-vis Cyprus, 16. Considering that the Foundation Agreement foresees equivalent entry and resident rights for Greek and Turkish nationals vis-à-vis Cyprus. The implementation of this principle requires derogations from Community law in the case of Cyprus. Unlimited immigration can, however, not be accorded to either Greek or Turkish nationals in the interest of the internal balance of population in Cyprus. 17. Underlining that all necessary preparations should start immediately so that Turkish shall become and operate as an official and working language of the European Union as soon as possible HAS ADOPTED THIS ACT OF ACCOMODATION OF THE TERMS OF ACCESSION Article 1: Property 1. Notwithstanding existing provisions of Community law, the application of restrictions, on a non-discriminatory basis, on the right of natural persons who have not been permanent residents for at least three years in the Turkish Cypriot constituent state, and of legal persons, to purchase immovable property in the Turkish Cypriot constituent state without permission of the competent authority of that constituent state, as long as the gross domestic product per capita in that constituent state does not reach the level of 85% of the gross domestic product per capita in the Greek Cypriot state, shall not be precluded.

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Part I: Constitutional Issues 2. The authorisation procedure for the acquisition of immovable property applied by the competent authorities of the Turkish Cypriot constituent state shall be based on published, objective, stable and transparent criteria and shall be applied in a non-discriminatory manner. 3. The Commission shall report every five years to the European Parliament and the Council on the application of the provisions of paragraphs 1–2. The Commission may at that time recommend to the Turkish Cypriot constituent state to abolish in total or in part the restrictions, if it considers that the political, economic and social conditions in Cyprus so allow. Article 2: Residence of Cypriot citizens 1. Notwithstanding existing provisions of Community law, the application of restrictions, on a non-discriminatory basis, on the right of a Cypriot citizen to reside in a constituent state of which he does not hold the internal constituent state citizenship status shall not be precluded, (a) in the form of a moratorium, during the first six years following the date of the entry into force of this Act; (b) if the percentage of such residents of the total population of a municipality or village has reached 6% between the 6th and 9th years and 12% between the 10th and 14th years following the date of entry into force of this Act, (c) if the percentage of such residents of the total population of a constituent state has reached 18% for a period of up to nineteen years following the entry into force of this Act or until Turkey joins the European Union, whichever is the earlier. 2. Notwithstanding the above, either constituent state may, with a view to protecting its identity, take safeguard measures to ensure that no less than two-thirds of its Cypriot permanent residents speak its official language as their mother tongue. Article 3: Residence of Greek and Turkish nationals 1. Notwithstanding existing provisions of Community law, the application of restrictions, on a non-discriminatory basis, on: (a) the right of Greek nationals to reside in Cyprus, if the number of resident Greek nationals has reached 5% of the number of resident Cypriot citizens who hold the internal constituent state citizenship status of the Greek Cypriot constituent State and who are not dual nationals; (b) the right of Turkish nationals to reside in Cyprus, if the number of resident Turkish nationals has reached 5% of the number of resident Cypriot citizens who hold the internal constituent citizenship status of the Turkish Cypriot constituent State and who are not dual nationals;

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In Search of a Solution (c) shall not be precluded for a transitional period of up to 19 years after the entry into force of this Act or until Turkey joins the European Union, whichever is the earlier. 2. Notwithstanding the above, the United Cyprus Republic, in consultation with the Commission, may take safeguard measures to ensure that the demographic ratio between Cypriot permanent residents speaking either Greek or Turkish as mother tongue is not substantially altered. Article 4: Safeguard measures 1. Without prejudice to Articles 37 and 38 of the Act of Accession, if until the end of a period of up to six years after the entry into force of this Act, the operation of the European Union’s internal market causes, or threatens to cause, difficulties which are serious and likely to persist in any sector of the economy, or which could bring a serious deterioration in the economic situation in the Turkish Cypriot constituent state, the competent Cypriot authorities may take appropriate safeguard measures which shall be applicable for a period of three months. These measures shall be proportional and shall not constitute disguised restrictions on trade and shall take account of the interests of all parties concerned. 2. On request, the Commission may prolong these measures, in total or in part, or adopt different measures of which it shall determine the time of application within the six years period set out in paragraph 1. Article 5: Equivalent rights of Greek and Turkish nationals Without prejudice to the restrictions applied under Articles 1–3 and rules applying to entry and residency rights of Turkish nationals in other Member States, Cyprus is authorised to accord to Turkish nationals equivalent treatment with Greek nationals regarding entry and residency rights. Rules of implementation for such entry and residency rights for Turkish citizens, compatible with the above principles and the participation of Cyprus in the Schengen area, shall be negotiated between the European Community and Turkey without delay. Article 6: The European Security and Defence Policy The participation of Cyprus in the European Security and Defence Policy shall fully respect the provisions of the Foundation Agreement and the provisions of the Treaties of Guarantee and Alliance and the Additional Protocols thereto, and in no sense undermine those provisions. Article 7: Representation in the European Parliament Cyprus will be represented in the European Parliament according to

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Part I: Constitutional Issues proportional representation, provided that each constituent state is attributed no less than one-third of the Cypriot seats in the European Parliament. Article 8: Turkish as official language of the European Union 1. Turkish shall be the official and working language of the institutions of the European Union. 2. Paragraph 1 shall take effect five years after the entry into force of this Act, unless the Council earlier decides to amend Council Regulation No. 1/1958, as amended. 3. The texts of the acts of the institutions and the European Central Bank, adopted before para. 1 takes effect, and drawn by the Council, the Commission or the European Central Bank, Turkish shall, from the date be authentic under the same conditions as the texts drawn in the other official languages. They shall be published in the Official Journal of the European Union if the texts in the other official languages were so published. Article 9: Entry into force This Act shall be published in the Official Journal of the European Union and become applicable the same day. Matters to be Submitted to the United Nations Security Council for Decision By agreement of the parties to the ‘Comprehensive Settlement of the Cyprus problem’, the Security Council is requested to take decisions to enter into force simultaneously with the Foundation Agreement, in which the Security Council would endorse the Foundation Agreement and, in particular; (a) take formal note that any unilateral change to the state of affairs established by the Foundation Agreement, in particular union of Cyprus in whole or in part with any other country or any form of partition or secession, is prohibited; and (b) acknowledge the political equality and distinct identity of Greek Cypriots and Turkish Cypriots and the equal status of their constituent states in the United Cyprus Republic; and prohibit the supply of arms to Cyprus in a manner that is legally binding on both importers and exporters; decide to maintain a United Nations peacekeeping operation in Cyprus, which shall remain so long as the federal government, with the concurrence of both constituent states, does not decide otherwise, and shall be authorised to deploy and operate freely throughout Cyprus with the following mandate: to monitor the implementation of the Foundation Agreement and use

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In Search of a Solution its best efforts to promote compliance with it and contribute to the maintenance of a secure environment; and in particular: (a) to monitor political developments related to implementation and provide advice and good offices as required; (b) to monitor and verify compliance with the security provisions in the Foundation Agreement, including: (i) the dissolution of all Greek Cypriot and Turkish Cypriot forces, including reserve units, and the removal of their arms from the island; (ii) the adjustment of Greek and Turkish forces and armaments to agreed equal levels; (c) to monitor and verify compliance with the provisions in the Foundation Agreement pertaining to federal and constituent state 45 police; (d) to use its best efforts to ensure the fair and equal treatment under the law of persons from one constituent state by the authorities of the other; (e) to supervise the activities relating to the transfer of areas subject to territorial adjustment, including through assumption of territorial responsibility for agreed areas and time periods prior to transfer, without prejudice to local administration of the population; (f) to chair, and provide administrative support to the Monitoring Committee to be established under the Treaty between Cyprus, Greece, Turkey and the United Kingdom on matters related to the new state of affairs in Cyprus; (g) to implement its mandate through, for example, conducting patrols and establishing positions and roadblocks, as well as receiving complaints, making enquiries, presenting facts, giving formal advice and making representations to the authorities.

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UN SECURITY COUNCIL RESOLUTIONS _______________________________________________________________

35. Resolution 186 (1964) on the legal situation in Cyprus just after December 1963 and adopted by the Security Council on 4 March 1964 The Security Council, Noting that the present situation with regard to Cyprus is likely to threaten international peace and security and may further deteriorate unless additional measures are promptly taken to maintain peace and to seek out a durable solution, Considering the positions taken by the parties in relation to the Treaties signed at Nicosia on 16 August 1960, Having in mind the relevant provisions of the Charter of the United Nations and its Article 2, paragraph 4, which reads: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’, 1. Calls upon all Member States, in conformity with their obligations under the Charter of the United Nations, to refrain from any action or threat of action to worsen the situation in the sovereign Republic of Cyprus, or to endanger international peace; 2. Asks the Government of Cyprus, which has the responsibility for the maintenance and restoration of law and order, to take all additional measures necessary to stop violence and bloodshed in Cyprus; 3. Calls upon the communities in Cyprus and their leaders to act with the utmost restraint; 4. Recommends the creation, with the consent of the Government of Cyprus, of a United Nations Peace-Keeping Force in Cyprus. The compo-

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sition and size of the Force shall be established by the Secretary-General, in consultation with the Governments of Cyprus, Greece, Turkey and the United Kingdom. The commander of the Force shall be appointed by the Secretary-General and report to him. The Secretary-General, who shall keep the Governments providing the Force fully informed, shall report periodically to the Security Council on its operation; Recommends that the function of the Force should be in the interest of preserving international peace and security, to use its best efforts to prevent a recurrence of fighting and, as necessary, to contribute to the maintenance and restoration of law and order and a return to normal conditions; Recommends that the stationing of the Force shall be for a period of three months, all costs pertaining to it being met, in a manner to be agreed upon by them, by the Governments providing the contingents and by the Government of Cyprus. The Secretary-General may also accept voluntary contributions for the purpose; Recommends further that the Secretary-General designate, in agreement with the Government of Cyprus and the Governments of Greece, Turkey and United Kingdom a mediator who shall use his best endeavours with the representatives of the communities and also with the aforesaid four Governments, for the purpose of promoting a peaceful solution and an agreed settlement of the problem confronting Cyprus, in accordance with the Charter of the United Nations, having in mind the well-being of the people as a whole and the preservation of international peace and security. The mediator shall report periodically to the Secretary-General on his efforts; Requests the Secretary-General to provide, from funds of the United Nations, as appropriate, for the remuneration and expenses of the mediator and his staff.

Adopted unanimously at the 1102nd meeting.

36. Some international reactions to the Turkish military operation of summer 1974 As previously stated, Turkey’s military operations on Cypriot soil were seen as controversial by the international community. Many Western politicians denounced it as an illegal invasion. One Greek Supreme Court case accepted its legitimacy. The United Nations took a range of resolutions concerning the operation. However, due to diplomatic lobbying by the USA and the UK it stopped short of naming the intervention as an ‘invasion’.

368

UN Security Council Resolutions Greek Supreme Court of Appeals 21 March 1979 Excerpt from decision no. 2658/79 On 15th July 1974, General Yoannidis, together with General Yorgitsis, the Commander of the Greek Regiment in Cyprus and General Yanakomidis organized a coup d’etat against Makarios with 102 other Greek officers. The President’s Palace in Nicosia was kept under fire by heavy weapons but President Makarios survived this attack through a miracle. After Greek officers violated the Cyprus Constitution, Nikos Sampson was appointed as the new president of Cyprus Republic. Turkey intervented [sic] to Cyprus using its legal right, on 20th July 1974. Resolution 353 (1974) adopted by the Security Council on 20 July 1974 The Security Council, Having considered the report of the Secretary-General at its 1779th meeting about the recent developments in Cyprus, Having heard the statement made by the President of the Republic of Cyprus and the statements by the representatives of Cyprus, Turkey, Greece and other Member States, Having considered at its present meeting further developments in the island, Deeply deploring the outbreak of violence and continuing bloodshed, Gravely concerned about the situation which led to a serious threat to international peace and security, and which created a most explosive situation in the whole Eastern Mediterranean area, Equally concerned about the necessity to restore the constitutional structure of the Republic of Cyprus, established and guaranteed by international agreement, Recalling its resolution 186 (1964) of 4 March 1964 and its subsequent resolutions on this matter, Conscious of this primary responsibility for the maintenance of international peace and security in accordance with Article 24 of the Charter of the United Nations, 1. Calls upon all States to respect the sovereignty, independence and territorial integrity of Cyprus; 2. Calls upon all parties to the present fighting as a first step to cease all firing and requests all States to exercise the utmost restraint and to refrain from any action which might further aggravate the situation; 3. Demands an immediate end to foreign military intervention in the Republic of Cyprus that is in contravention of paragraph 1 above; 4. Requests the withdrawal without delay from the Republic of Cyprus of foreign military personnel present otherwise than under the authority of international agreements, including those whose withdrawal was 369

Part I: Constitutional Issues requested by the President of the Republic of Cyprus, Archbishop Makarios, in his letter of 2 July 1974; 5. Calls upon Greece, Turkey and the United Kingdom of Great Britain and Northern Ireland to enter into negotiation without delay for the restoration of peace in the area and constitutional government in Cyprus and to keep the Secretary-General informed; 6. Calls upon all parties to cooperate fully with the United Nations PeaceKeeping Force in Cyprus to enable it to carry out its mandate; 7. Decides to keep the situation under constant review and asks the Secretary-General to report as appropriate with a view to adopting further measures in order to ensure that peaceful conditions are restored as soon as possible. Adopted unanimously at the 1781st meeting.

37. Resolution 367 (1975) adopted by the Security Council by consensus on 12 March 1975: proclamation of the Federated Turkish State and other developments The Security Council, Having considered the situation in Cyprus in response to the complaint submitted by the Government of the Republic of Cyprus, Having heard the report of the Secretary-General and the statements made by the parties concerned, Deeply concerned at the continuation of the crisis in Cyprus, Recalling its previous resolutions, in particular resolution 365 (1974) of 13 December 1974, by which it endorsed General Assembly resolution 3212 (XXIX) adopted unanimously on 1 November 1974, Noting the absence of progress towards the implementation of its resolutions 1. Calls once more on all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus and urgently requests them, as well as the parties concerned, to refrain from any action which might prejudice that sovereignty, independence, territorial integrity and non-alignment, as well as from any attempt at partition of the island or its unification with any other country; 2. Regrets the unilateral decision of 13 February 1975, declaring that a part of the Republic of Cyprus would become a ‘Federated Turkish State’, as, inter alia, tending to compromise the continuation of negotiations between the representatives of the two communities on an equal footing, the objective of which must continue to be to reach freely a solution providing for a political settlement and the establishment of a mutually acceptable constitutional arrangement, and expresses its concern over all 370

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unilateral actions by the parties which have compromised or may compromise the implementation of the relevant United Nations resolutions; Affirms that the decision referred to in paragraph 2 above does not prejudge the final political settlement of the problem of Cyprus and takes note of the declaration that this was not its intention; Calls for the urgent and effective implementation of all parts and provisions of General Assembly resolution 3212(XXIX), endorsed by Security Council resolution 365(1974); Considers that new efforts should be undertaken to assist the resumption of the negotiations referred to in paragraph 4 of General Assembly resolution 3212 (XXIX) between the representatives of the two communities; Requests the Secretary-General accordingly to undertake a new mission of good offices and to that end to convene the parties under new agreed procedures and place himself personally at their disposal, so that the resumption, the intensification and the progress of comprehensive negotiations, carried out in a reciprocal spirit of understanding and of moderation under his personal auspices and with his direction as appropriate, might thereby be facilitated; Calls on the representatives of the two communities to cooperate closely with the Secretary-General in the discharge of this new mission of good offices and asks them to accord personally a high priority to their negotiations; Calls on all the parties concerned to refrain from any action which might jeopardise the negotiations between the representatives of the two communities and to take steps which will facilitate the creation of the new climate necessary for the success of those negotiations; Requests the Secretary-General to keep the Security Council informed of the progress made towards the implementation of resolution 365 (1974) and of this resolution and to report to it whenever he considered it appropriate and, in any case, before 15 June 1975; Decides to remain actively seized of the matter.

Adopted at the 1820th meeting without a vote.

38. Resolution 541 (1983): the UN condemnation of the proclamation of the TRNC adopted by the Security Council on 18 November 1983 The Security Council, Having heard the statement of the Foreign Minister of the Government of the Republic of Cyprus,

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Part I: Constitutional Issues Concerned at the declaration by the Turkish Cypriot authorities issued on 15 November 1983 which purports to create an independent state in northern Cyprus, Considering that this declaration is incompatible with the 1960 Treaty concerning the establishment of the Republic of Cyprus and the 1960 Treaty of Guarantee, Considering therefore that the attempt to create a ‘Turkish Republic of Northern Cyprus’, is invalid, and will contribute to a worsening of the situation in Cyprus, Reaffirming its resolutions 365 (1974) and 367 (1975), Aware of the need for a solution of the Cyprus problem, based on the mission of good offices undertaken by the Secretary-General, Affirming its continuing support for the United Nations Peace-Keeping Force in Cyprus, Taking note of the Secretary-General’s statement of 17 November 1983, 1. Deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus; 2. Considers the declaration referred to above as legally invalid and calls for its withdrawal; 3. Calls for the urgent and effective implementation of its resolutions 365 (1974) and 367 (1975); 4. Requests the Secretary-General to pursue his mission of good offices in order to achieve the earliest possible progress towards a just and lasting settlement in Cyprus; 5. Calls upon the parties to cooperate fully with the Secretary-General in his mission of good offices; 6. Calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus; 7. Calls upon all States not to recognise any Cypriot state other than the Republic of Cyprus; 8. Calls upon all States and the two communities in Cyprus to refrain from any action which might exacerbate the situation; 9. Requests the Secretary-General to keep the Security Council fully informed. Adopted at the 2500th meeting by 13 votes to 1 against (Pakistan) with 1 abstention (Jordan).

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39. Resolution 550 (1984) on exchange of ambassadors between Turkey and the TRNC adopted by the Security Council on 11 May 1984 The Security Council, Having considered the situation in Cyprus at the request of the Government of the Republic of Cyprus, Having heard the statement made by the President of the Republic of Cyprus, Taking note of the report of the Secretary-General (S/16519), Recalling its resolutions 365 (1974), 367 (1975), 541 (1983) and 544 (1983), Deeply regretting the non-implementation of its resolutions, in particular resolution 541 (1983), Gravely concerned about the further secessionist acts in the occupied part of the Republic of Cyprus which are in violation of resolution 541 (1983), namely the purported ‘exchange of Ambassadors’ between Turkey and the legally invalid ‘Turkish Republic of Northern Cyprus’ and the contemplated holding of a ‘Constitutional referendum’ and ‘elections’, as well as by other actions or threats of action aimed at further consolidating the purported independent state and the division of Cyprus, Deeply concerned about recent threats for settlement of Varosha by people other than its inhabitants, Reaffirming its continuing support for the United Nations Peace-Keeping Force in Cyprus, 1. Reaffirms its resolution 541 (1983) and calls for its urgent and effective implementation, 2. Condemns all secessionist actions, including the purported exchange of Ambassadors between Turkey and the Turkish Cypriot leadership, declares them illegal and invalid and calls for their immediate withdrawal; 3. Reiterates the call upon all States not to recognise the purported state of the ‘Turkish Republic of Northern Cyprus’ set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid secessionist entity; 4. Calls upon all States to respect the sovereignty, independence, territorial integrity, unity and non-alignment of the Republic of Cyprus; 5. Considers attempts to settle any part of Varosha by people other than its inhabitants as inadmissible and calls for the transfer of this area to the administration of the United Nations; 6. Considers any attempts to interfere with the status or the deployment of the United Nations Peace-Keeping Force in Cyprus as contrary to the resolutions of the United Nations;

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Part I: Constitutional Issues 7. Requests the Secretary-General to promote the urgent implementation of Security Council resolution 541 (1983); 8. Reaffirms its mandate of good offices given to the Secretary-General and requests him to undertake new efforts to attain an overall solution to the Cyprus problem in conformity with the principles of the Charter of the United Nations and the provisions for such a settlement laid down in the pertinent United Nations resolutions, including Security Council resolution 541 (1983) and the present resolution; 9. Calls upon all parties to cooperate with the Secretary-General in his mission of good offices; 10. Decides to remain seized of the situation with a view to taking urgent and appropriate measures in the event of non-implementation of its resolution 541 (1983) and the present resolution; 11. Requests the Secretary-General to promote the implementation of the resolution and to report thereon to the Security Council as developments require. Adopted at the 2539th meeting by 13 votes to 1 (Pakistan) with 1 abstention (United States of America).

40. Resolution 716 (1991) on the Ghali set of ideas and other parameters for a solution adopted by the Security Council on 11 November 1991 The Security Council, Having considered the report of the Secretary-General of 8 October 1991 on his mission of good offices in Cyprus (S/23121), Noting with satisfaction the progress made in preparing a set of ideas as the basis for arriving at an agreed overall framework agreement on Cyprus, Noting with concern the difficulties encountered in completing this work, Regretting that it was not possible to convene the high-level international meeting foreseen in the statement by the President of the Security Council of 28 June 1991 (S/22744), 1. Commends the Secretary-General for his efforts during the past few months and endorses his report and observations; 2. Reaffirms its previous resolutions on Cyprus; 3. Reaffirms its position on the Cyprus question, expressed most recently in resolution 649 (1990) and in line with the 1977 and 1979 high-level agreements between the parties in Cyprus, that the fundamental prin374

UN Security Council Resolutions

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ciples of a Cyprus settlement are the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus, the exclusion of union in whole or in part with any other country and any form of partition or secession; and the establishment of a new constitutional arrangement for Cyprus that would ensure the well-being and security of the Greek Cypriot and Turkish Cypriot communities in a bicommunal and bi-zonal federation; Reaffirms that its position on the solution to the Cyprus problem is based on one State of Cyprus comprising two politically equal communities as defined by Secretary-General in the eleventh paragraph of annex 1 to his report dated 8 March 1990 (S/21183); Calls upon the parties to adhere fully to these principles and to negotiate within the framework of them without introducing concepts that are at variance with them; Reaffirms that the Secretary-General’s mission of good offices is with the two communities whose participation in the process is on an equal footing; Endorses the Secretary-General’s intention to resume discussions in early November with the two parties in Cyprus and Greece and Turkey to complete the set of ideas on an overall framework agreement; Considers that convening a high-level international meeting chaired by the Secretary-General in which the two communities and Greece and Turkey would participate represents an effective mechanism for concluding an overall framework agreement on Cyprus; Requests the leaders of the two communities and Greece and Turkey to cooperate fully with the Secretary-General and his representatives so that the high-level international meeting can be convened before the end of this year; Requests the Secretary-General to report to the Security Council in November 1991 whether sufficient progress has been made to convene the high-level international meeting and, should conditions not be ripe, to convey to the Council the set of ideas as they will have evolved by that time with his assessment of the situation.

Adopted unanimously at its 3013th meeting.

41. Resolution 789 (1992) adopted by the Security Council on 25 November 1992 The Security Council, Having considered the report of the Secretary-General of 19 November 1992 on his mission of good offices in Cyprus (S/24830), 375

Part I: Constitutional Issues Noting with satisfaction that the two leaders discussed all the issues in the Set of Ideas with the result that there were areas of agreement as noted in the report, Welcoming the agreement by the two sides to meet again with the Secretary-General in early March 1993 to complete the work on an agreed Set of Ideas, 1. Reaffirms all its previous resolutions on Cyprus, including resolutions 365 (1974), 367 (1975), 541 (1983), 550 (1984) and 774 (1992), 2. Endorses the report of the Secretary-General and commends him for his efforts, 3. Reaffirms also its endorsement of the Set of Ideas including the territorial adjustments reflected in the map contained in the annex to the report of the Secretary-General of 21 August 1992 (2/S/24472) as the basis for reaching an overall framework agreement, 4. Reaffirms further its position that the present status quo is not acceptable and that an overall agreement in line with the Set of Ideas should be achieved without further delay; 5. Notes that the recent joint meetings did not achieve their intended goal, in particular because certain positions adopted by the Turkish Cypriot side were fundamentally at variance with the Set of Ideas, 6. Calls upon the Turkish Cypriot side to adopt positions that are consistent with the Set of Ideas on those issues identified by the Secretary-General in his report, and for all concerned to be prepared in the next round of talks to make decisions that will bring about a speedy agreement, 7. Recognises that the completion of this process in March 1993 would be greatly facilitated by the implementation by each side of measures designed to promote mutual confidence; 8. Urges all concerned to commit themselves to the confidence-building measures set out below: (a) That, as a first step towards the withdrawal of non-Cypriot forces envisaged in the Set of Ideas, the number of foreign troops in the Republic of Cyprus undergo a significant reduction and that a reduction of defence spending be effected in the Republic of Cyprus; (b) That the military authorities on each side cooperate with the United Nations Peace-Keeping Force in Cyprus in order to extend the unmanning agreement of 1989 to all areas of the United Nations-controlled Buffer Zone where the two sides are in close proximity to each other; (c) That, with a view to the implementation of resolution 550 (1984), the area at present under the control of the United Nations Peace-Keeping Force in Cyprus be extended to include Varosha; (d) That each side take active measures to promote people-to-people contact

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(e) (f) (g) (h)

between the two communities by reducing restrictions to the movement of persons across the Buffer Zone; That restrictions imposed on foreign visitors crossing the Buffer Zone be reduced; That each side propose bi-communal projects, for possible financing by lending and donor Governments as well as international institutions; That both sides commit themselves to the holding of a Cyprus-wide census under the auspices of the United Nations; That both sides cooperate to enable the United Nations to undertake, in the relevant locations, feasibility studies (i) in connection with the resettlement and rehabilitation of persons who would be affected by the territorial adjustments as part of the overall agreement, and (ii) in connection with the programme of economic development that would, as part of the overall agreement, benefit those persons who would resettle in the area under Turkish Cypriot administration;

9. Requests the Secretary-General to follow up on the implementation of the above confidence-building measures and to keep the Security Council informed as appropriate; 10. Also requests the Secretary-General to maintain such preparatory contacts as he considers appropriate before the resumption of the joint meetings in March 1993, and to propose for the Security Council’s consideration revisions in the negotiating format to make it more effective; 11. Further requests the Secretary-General, during the March 1993 joint meetings, to assess developments on a regular basis with the Council with a view to considering what further action may be needed by the Council; 12. Requests the Secretary-General to submit a full report after the conclusion of the joint meetings that will resume in March 1993. Adopted at its 3140th meeting.

42. Resolution 889 (1993): set of ideas, troop reduction and confidence building measures adopted by the Security Council on 15 December 1993 The Security Council, Recalling its resolution 186 (1964) and other relevant resolutions, Having considered the report of the Secretary-General of 22 November 1993 (S/26777 and Add. 1) submitted pursuant to resolutions 831 (1993) of 377

Part I: Constitutional Issues 27 May 1993 and 839 (1993) of 11 June 1993 in connection with the Security Council’s comprehensive reassessment of the United Nations operation in Cyprus, Noting the recommendation by the Secretary-General that the Security Council extend the stationing of the United Nations Peace-Keeping Force in Cyprus in its present strength and structure for a further period of six months, Noting also that the Government of Cyprus has agreed that, in view of the prevailing conditions in the island, it is necessary to keep the Force in Cyprus beyond 15 December 1993, 1. Extends once more the stationing in Cyprus of the United Nations PeaceKeeping Force established under resolution 186 (1964) (UNFICYP) for a further period ending on 15 June 1994; 2. Notes the Secretary-General’s conclusion that the present circumstances do not allow for any modification in the structure and strength of UNFICYP and requests him to keep those matters under constant review with a view to the further possible restructuring of UNFICYP; 3. Calls upon the military authorities on both sides to ensure that no incidents occur along the buffer zone and to extend their full co-operation to UNFICYP; 4. Urges all concerned once again to commit themselves to a significant reduction in the number of foreign troops in the Republic of Cyprus and a reduction of defence spending in the Republic of Cyprus to help restore confidence between the parties and as a first step towards the withdrawal of non-Cypriot forces as set out in the Set of Ideas; 5. Calls upon the military authorities on both sides, in line with paragraph 3 of resolution 839 (1993) of 11 June 1993, to begin discussions with UNFICYP without further delay with a view to entering into mutual commitments to prohibit along the cease-fire lines live ammunition or weapons other than those which are hand-held and to prohibit also the firing of weapons within sight or hearing of the buffer zone; 6. Calls upon the military authorities on both sides to cooperate with UNFICYP in extending the 1989 unmanning agreement to cover all areas of the buffer zone where the two sides are in close proximity to each other; 7. Urges the leaders of both communities to promote tolerance and reconciliation between the two communities as recommended in paragraph 102 of the Secretary-General’s report of 22 November 1993; 8. Reaffirms that the status quo is unacceptable, and encourages the Secretary-General and his Special Representative to pursue the SecretaryGeneral’s mission of good offices on the basis of the Set of Ideas and the package of confidence-building measures relating to Varosha and Nicosia International Airport referred to in paragraph 45 of the SecretaryGeneral’s report of 22 November 1993;

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UN Security Council Resolutions 9. Notes with interest the confirmation by the team of international economic experts that the package of confidence-building measures holds significant and proportionate benefits for both sides, and looks forward to receiving the full reports of the economic and civil aviation experts; 10. Welcomes in this context the decision of the Secretary-General to resume intensive contacts with both sides and with others concerned and to concentrate at this stage on achieving an agreement on the package of confidence-building measures, intended to facilitate the political process towards an overall settlement; 11. Further welcomes the declared support of the Government of Turkey for the package of confidence-building measures, would also welcome a statement of support for that package by the Government of Greece and expresses the hope that rapid progress will now be made on achieving agreement on the package; 12. Requests the Secretary-General to submit a report by the end of February 1994 on the outcome of his efforts to achieve an agreement on the package of confidence-building measures; 13. Decides to undertake, on the basis of that report, a thorough review of the situation, including the future role of the United Nations, and, if necessary, to consider alternative ways to promote the implementation of its resolutions on Cyprus. Adopted at its 3322nd meeting.

43. Resolution 902 (1994): confidence building measures adopted by the Security Council on 11 March 1994 The Security Council, Recalling its relevant resolutions on Cyprus, Welcoming the report of the Secretary-General of 4 March 1994 (S/1994/262) on his mission of good offices in Cyprus submitted pursuant to resolution 889 (1993) of 15 December 1993, Recalling its support for the Secretary-General’s decision to concentrate at this stage on achieving an agreement on the confidence-building measures relating to Varosha and Nicosia International Airport, as well as the other measures outlined in annex I to his report of 1 July 1993, (S/26026), Reaffirming that the confidence-building measures, while not an end in themselves, nor a substitute for the wider political process, would offer significant benefits to both communities and would facilitate the political process towards an overall settlement, 379

Part I: Constitutional Issues 1. Reiterates that the maintenance of the status quo is unacceptable; 2. Welcomes the acceptance in principle by both parties of the confidencebuilding measures relating, in particular, to Varosha and Nicosia International Airport; 3. Welcomes the fact that intensive discussions have made it possible for the Secretary-General’s representatives to bring forward ideas that should facilitate the discussions aimed at reaching agreement on the key issues for implementing the confidence-building measures, and stresses the need to conclude such an agreement without delay; 4. Requests the Secretary-General to submit a further report by the end of March 1994 on the outcome of his efforts to finalise that agreement; 5. Decides to review the matter further, pursuant to paragraph 13 of resolution 889 (1993), on the basis of that report. Adopted at its 3347th meeting.

44. Resolution 1217 (1998) on armament spending and militarization adopted by the UN Security Council on 22 December 1998 The Security Council, Welcoming the report of the Secretary-General of the United Nations operation in Cyprus of 10 December 1998 (S/1998/1149 and Add.1), Welcoming also the letter to the President of the Security Council from the Secretary-General on his Mission of Good Offices in Cyprus of 14 December 1998 (S/1998/1166), Noting that the Government of Cyprus has agreed that in view of the prevailing conditions in the island it is necessary to keep the United Nations Peacekeeping Force in Cyprus (UNFICYP) beyond 31 December 1998, Reaffirming all its earlier resolutions on Cyprus, Calling once more upon all States to respect the sovereignty, independence and territorial integrity of the Republic of Cyprus and requesting them, along with the parties concerned, to refrain from any action which might prejudice that sovereignty, independence and territorial integrity, as well as from any attempt of partition of the island or its unification with any other country, Noting with concern that restrictions to the freedom of movement of UNFICYP continue, Noting further with satisfaction that the situation along the ceasefire lines remained generally calm, notwithstanding numerous minor violations, Reiterating the need to make progress on a comprehensive political solution, 380

UN Security Council Resolutions 1. Decides to extend the mandate of UNFICYP for a further period ending on 30 June 1999; 2. Reminds both sides of their obligations to prevent any violence directed against UNFICYP personnel, to cooperate fully with UNFICYP and to ensure its complete freedom of movement; 3. Calls upon the military authorities on both sides to refrain from any action, particularly in the vicinity of the buffer zone, which would exacerbate tensions; 4. Reiterates its grave concern at the continuing excessive levels of military forces and armaments in the Republic of Cyprus and the rate at which they are being expanded, upgraded and modernized, including by the introduction of sophisticated weaponry, and the lack of progress towards any significant reduction in the number of foreign troops in the Republic of Cyprus, which threaten to raise tensions both on the island and in the region and complicate efforts to negotiate an overall political settlement; 5. Calls upon all concerned to commit themselves to a reduction in defence spending and a reduction in the number of foreign troops in the Republic of Cyprus to help restore confidence between the parties and as a first step towards the withdrawal of non-Cypriot forces as described in the Set of Ideas (S/24472, Annex), stresses the importance of eventual demilitarization of the Republic of Cyprus as an objective in the context of an overall comprehensive settlement and encourages the Secretary-General to continue to promote efforts in this direction; 6. Reaffirms that the status quo is unacceptable and that negotiations on a final political solution of the Cyprus problem have been at an impasse for too long; 7. Reaffirms its position that a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising two politically equal communities as described in the relevant Security Council resolutions, in a bi-communal and bizonal federation, and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession; 8. Stresses its full support for the Secretary-General’s Mission of Good Offices and for the efforts of his Special Adviser and Deputy Special Representative for Cyprus to resume when appropriate a sustained process of direct negotiations aimed at achieving a comprehensive settlement on the basis of the relevant Security Council resolutions, and stresses also the importance of concerted efforts to work with the Secretary-General to that end; 9. Calls once again upon the leaders of the two communities to commit themselves to this process of negotiations, and to cooperate actively and constructively with the Secretary-General, his Special Adviser and his Deputy Special Representative and to resume when appropriate the direct

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Part I: Constitutional Issues dialogue, and urges all States to lend their full support to these efforts; 10. Welcomes the ongoing efforts by UNFICYP to implement its humanitarian mandate in respect of Greek Cypriots and Maronites living in the northern part of the island and Turkish Cypriots living in the southern part, as mentioned in the report of the Secretary-General; 11. Welcomes also the resumption of work of the Committee on Missing Persons, and calls for implementation without delay of the agreement on missing persons of 31 July 1997; 12. Reiterates its support for the efforts of the United Nations and others concerned to promote the holding of bi-communal events so as to build cooperation, trust and mutual respect between the two communities; 13. Welcomes the efforts made to improve the efficiency of UNFICYP, including by the establishment of a new Civil Affairs Branch; 14. Requests the Secretary-General to submit a report by 10 June 1999 on the implementation of this resolution; 15. Decides to remain actively seized of the matter.

45. Resolution 1475 (2003): failure of peace talks based on the Annan proposals The full text of resolution 1475 ( 14.4.2003) reads as follows: The Security Council, Reaffirming all its resolutions on Cyprus, in particular resolution 1250 (1999) of 29 June 1999 aimed at achieving agreement on a comprehensive Cyprus settlement, Reiterating its strong interest in achieving an overall political settlement on Cyprus which takes full consideration of relevant Security Council resolutions and treaties, Welcoming the report of the Secretary-General of 1 April 2003 (S/2003/398) on his mission of good offices in Cyprus, 1. Commends the extraordinary effort made by the Secretary-General and his Special Adviser and his team since 1999 in pursuance of his Good Offices mission and within the framework of Security Council resolution 1250 (1999); 2. Further commends the Secretary-General for taking the initiative to present to the parties a comprehensive settlement plan aimed at bridging the gaps between them, drawing upon the talks that began in December 1999 under United Nations auspices and, following negotiations, to revise that plan on 10 December 2002 and 26 February 2003;

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UN Security Council Resolutions 3. Regrets that, as described in the Secretary-General’s report, due to the negative approach of the Turkish Cypriot leader, culminating in the position taken at the 10–11 March 2003 meeting in The Hague, it was not possible to reach agreement to put the plan to simultaneous referenda as suggested by the Secretary-General, and thus that the Turkish Cypriots and the Greek Cypriots have been denied the opportunity to decide for themselves on a plan that would have permitted the reunification of Cyprus and as a consequence it will not be possible to achieve a comprehensive settlement before 16 April 2003; 4. Gives its full support to the Secretary-General’s carefully balanced plan of 26 February 2003 as a unique basis for further negotiations, and calls on all concerned to negotiate within the framework of the SecretaryGeneral’s Good Offices, using the plan to reach a comprehensive settlement as set forth in paragraphs 144–151 of the Secretary-General’s report; 5. Stresses its full support for the Secretary-General’s mission of Good Offices as entrusted to him in resolution 1250 (1999) and asks the SecretaryGeneral to continue to make available his Good Offices for Cyprus as outlined in his report; 6. Decides to remain actively seized of the matter.

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46. Resolution 3212 (XXIX), 1 November 1974: sovereignty, Republic of Cyprus The General Assembly adopted on the evening of 1st November 1974, resolution 3212 (XXIX) by 117 votes in favour, none against and no abstentions. The resolution reads as follows: The General Assembly, Having considered the question of Cyprus, Gravely concerned about the continuation of the Cyprus crisis, which constitutes a threat to international peace and security, Mindful of the need to solve this crisis without delay by peaceful means, in accordance with the purposes and principles of the United Nations, Having heard the statements in the debate and taking note of the Report of the Special Political Committee on the Question of Cyprus, 1. Calls upon all states to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus and to refrain from all acts and interventions directed against it; 2. Urges the speedy withdrawal of all foreign armed forces and foreign military presence and personnel from the Republic of Cyprus and the cessation of all foreign interference in its affairs; 3. Considers that the constitutional system of the Republic of Cyprus concerns the Greek-Cypriot and Turkish-Cypriot communities; 4. Commends the contacts and negotiations taking place on an equal footing, with the good offices of the Secretary-General between the representatives of the two communities, and calls for their continuation with a view to reaching freely a mutually acceptable political settlement, based on their fundamental and legitimate rights; 5. Considers that all the refugees should return to their homes in safety and

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8.

9. 10.

calls upon the parties concerned to undertake urgent measures to that end; Expresses the hope that, if necessary, further efforts including negotiations can take place, within the framework of the United Nations, for the purpose of implementing the provisions of the present resolution, thus ensuring to the Republic of Cyprus its fundamental right to independence, sovereignty and territorial integrity; Requests the Secretary-General to continue to provide United Nations humanitarian assistance to all parts of the population of Cyprus and calls upon all states to contribute to that effort; Calls upon all parties to continue to cooperate fully with the United Nations Peace-Keeping Force in Cyprus, which may be strengthened if necessary; Requests the Secretary-General to continue to lend his good offices to the parties concerned; Further requests the Secretary-General to bring the present resolution to the attention of the Security Council.

47. Resolution 37/253, 13 May 1983: proclamation of TRNC on refugees On 13 May 1983 the UN General Assembly adopted resolution 37/253 on Cyprus. The vote on the resolution was 103 in favour and 5 against with 20 abstentions. The votes against the resolution were cast by Bangladesh, Malaysia, Pakistan, Somalia and Turkey. Following is the text of the resolution: The General Assembly, Having considered the question of Cyprus, Recalling its resolution 3212(XXIX) of 1 November 1974 and its subsequent resolutions on the question of Cyprus, Recalling the high-level agreements of 12 February 1977 and 19 May 1979, Reaffirming the principle of the inadmissibility of occupation and acquisition of territories by force, Greatly concerned at the prolongation of the Cyprus crisis, which poses a serious threat to international peace and security, Deeply regretting that the resolutions of the United Nations on Cyprus have not yet been implemented, Recalling the idea of holding an international conference on Cyprus, Deploring the fact that part of the territory of the Republic of Cyprus is still occupied by foreign forces,

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UN General Assembly Resolutions Deploring the lack of progress in the intercommunal talks, Deploring all unilateral actions that change the demographic structure of Cyprus or promote faits accomplis, Reaffirming the need to settle the question of Cyprus without further delay by peaceful means in accordance with the provisions of the Charter of the United Nations and the relevant United Nations resolutions, 1. Reiterates its full support for the sovereignty, independence, territorial integrity, unity and non-alignment of the Republic of Cyprus and calls once again for the cessation of all foreign interference in its affairs; 2. Affirms the right of the Republic of Cyprus and its people to full and effective sovereignty and control over the entire territory of Cyprus and its natural and other resources and calls upon all states to support and help the Government of the Republic of Cyprus to exercise these rights; 3. Condemns any act which tends to undermine the full and effective exercise of the above-mentioned rights, including the unlawful issue of titles of ownership of property; 4. Welcomes the proposal for total demilitarisation made by the President of the Republic of Cyprus; 5. Expresses its support for the high-level agreements of 12 February 1977 and 19 May 1979 and all the provisions thereof; 6. Demands the immediate and effective implementation of resolution 3212 (XXIX), unanimously adopted by the General Assembly and endorsed by the Security Council in its resolution 365 (1974) of 13 December (1974), and of the subsequent resolutions of the Assembly and the Council on Cyprus, which provide the valid and essential basis for the solution of the problem of Cyprus; 7. Considers the withdrawal of all occupation forces from the Republic of Cyprus as an essential basis for a speedy and mutually acceptable solution of the Cyprus problem; 8. Demands the immediate withdrawal of all occupation forces from the Republic of Cyprus; 9. Commends the intensification of the efforts made by the SecretaryGeneral, while noting with concern the lack of progress in the intercommunal talks; 10. Calls for meaningful, result-oriented, constructive and substantive negotiations between the representatives of the two communities, to be conducted freely on an equal footing on the basis of relevant United Nations resolutions and the high level agreements, with a view to reaching as early as possible a mutually acceptable agreement based on the fundamental and legitimate rights of the two communities; 11. Calls for respect of the human rights and fundamental freedoms of all Cypriots, including the freedom of movement, the freedom of settlement

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12.

13.

14.

15.

16.

17.

and the right to property and the instituting of urgent measures for the voluntary return of the refugees to their homes in safety; Considers that the de facto situation created by the force of arms should not be allowed to influence or in any way affect the solution of the problem of Cyprus; Calls upon the parties concerned to refrain from any unilateral action which might adversely affect the prospects of a just and lasting solution of the problem of Cyprus by peaceful means and to cooperate fully with the Secretary-General in the performance of his task under the relevant resolutions of the General Assembly and the Security Council as well as with the United Nations Peace-Keeping Force in Cyprus; Calls upon the parties concerned to refrain from any action which violates or is designed to violate the independence, unity, sovereignty and territorial integrity of the Republic of Cyprus; Reiterates its recommendation that the Security Council should examine the question of the implementation, within a specified time-frame, of its relevant resolutions and consider and adopt thereafter, if necessary, all appropriate and practical measures under the Charter of the United Nations for ensuring the speedy and effective implementation of the resolutions of the United Nations on Cyprus. Welcomes the intention of the Secretary-General, as expressed in his report (Doc. A/37/805 of 6/5/1983), to pursue a renewed personal involvement in the quest for a solution of the Cyprus problem and, in view of this, requests the Secretary-General to undertake such actions or initiatives as he may consider appropriate within the framework of the mission of good offices entrusted to him by the Security Council for promoting a just and lasting solution of the problem and to report to the General Assembly at its thirty-eighth session on the results of his efforts; Decides to include the provisional agenda of its thirty-eighth session the item entitled ‘Question of Cyprus’ and requests the Secretary-General to follow up the implementation of the present resolution and to report on all its aspects to the General Assembly at that session.

Separate vote on paragraph 8 A separate vote was taken on operative paragraph 8, which was approved by 89 votes in favour, 5 against and 27 abstentions. Separate vote on paragraph 15 A separate vote was also taken on operative paragraph 15 which was approved 86 votes in favour, 8 against and 25 abstentions.

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EUROPEAN COURT OF HUMAN RIGHTS __________________________________________________

48. The recognition of Turkey’s international legal responsibility for the human rights violations that occur in Northern Cyprus: the case of Loizidou v. Turkey 40/1993/45/514 at the European Court of Human Rights AS TO THE FACTS Particular circumstances of the case 11. The applicant, a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she married and moved with her husband to Nicosia. 12. She claims to be the owner of plots of land nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus and she alleges that prior to the Turkish occupation of Northern Cyprus on 20 July 1974, work had commenced on plot no. 5390 for the construction of flats, one of which was intended as a home for her family. Her ownership of the properties is attested by certificates of registration issued by the Cypriot Lands and Surveys Department at the moment of acquisition. She states that she has been prevented in the past, and is still prevented, by Turkish forces from returning to Kyrenia and ‘peacefully enjoying’ her property. 13. On 19 March 1989 the applicant participated in a march organised by a women’s group (‘Women Walk Home’ movement) in the village of Lymbia near the Turkish village of Akincilar in the occupied area of northern Cyprus. The aim of the march was to assert the right of Greek

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Part II: Cyprus–Europe Relations (1983–2006) Cypriot refugees to return to their homes. Leading a group of fifty marchers she advanced up a hill towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the United Nations’ guard post on the way. When they reached the churchyard they were surrounded by Turkish soldiers and prevented from moving any further. 14. She was eventually detained by members of the Turkish Cypriot police force and brought by ambulance to Nicosia. She was released around midnight, having been detained for more than ten hours. A. Turkish military presence in Northern Cyprus 16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army’s headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana. 17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns ‘TRNC citizens’ by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the ‘TRNC’. B. Article 159 (1) (b) of the ‘TRNC’ Constitution 18. Article 159 (1) (b) of the 7 May 1985 Constitution of the ‘Turkish Republic of Northern Cyprus’ (the ‘TRNC’) provides, where relevant, as follows: ‘All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined … and … situated within the boundaries of the TRNC on 15 November 1983, shall be the property of the TRNC notwithstanding the fact that they are not so 392

European Court of Human Rights registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.’ C. The international response to the establishment of the ‘TRNC’ 19. On 18 November 1983, in response to the proclamation of the establishment of the ‘TRNC’, the United Nations Security Council adopted Resolution 541 (1983) which provides, where relevant, as follows: ‘The Security Council … 1. Deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus; 2. Considers the declaration … as legally invalid and calls for its withdrawal …; 6. Calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus; 7. Calls upon all States not to recognise any Cypriot State other than the Republic of Cyprus …’ 20. Resolution 550 (1984), adopted on 11 May 1984 in response to the exchange of ‘ambassadors’ between Turkey and the ‘TRNC’ stated, inter alia: ‘The Security Council … 1. Reaffirms its Resolution 541 (1983) and calls for its urgent and effective implementation; 2. Condemns all secessionist actions, including the purported exchange of ambassadors between Turkey and the Turkish Cypriot leadership, declares them illegal and invalid and calls for their immediate withdrawal; 3. Reiterates the call upon all States not to recognise the purported State of the “Turkish Republic of Northern Cyprus” set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid secessionist entity; 4. Calls upon all States to respect the sovereignty, independence, territorial integrity, unity and non-alignment of the Republic of Cyprus.’ 21. In November 1983, the Committee of Ministers of the Council of Europe decided that it continued to regard the Government of the Republic of Cyprus as the sole legitimate Government of Cyprus and called for the respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus. 22. On 16 November 1983 the European Communities issued the following statement: 393

Part II: Cyprus–Europe Relations (1983–2006) The ten Member States of the European Community are deeply concerned by the declaration purporting to establish a “Turkish Republic of Northern Cyprus” as an independent State. They reject this declaration, which is in disregard of successive resolutions of the United Nations. The Ten reiterate their unconditional support for the independence, sovereignty, territorial integrity and unity of the Republic of Cyprus. They continue to regard the Government of President Kyprianou as the sole legitimate Government of the Republic of Cyprus. They call upon all interested parties not to recognize this act, which creates a very serious situation in the area. 23. The Commonwealth Heads of Government, meeting in New Delhi from 23 to 29 November 1983, issued a press communiqué stating, inter alia, as follows: [The] Heads of Government condemned the declaration by the Turkish Cypriot authorities issued on 15 November 1983 to create a secessionist state in northern Cyprus, in the area under foreign occupation. Fully endorsing Security Council Resolution 541, they denounced the declaration as legally invalid and reiterated the call for its non-recognition and immediate withdrawal. They further called upon all States not to facilitate or in any way assist the illegal secessionist entity. They regarded this illegal act as a challenge to the international community and demanded the implementation of the relevant UN Resolutions on Cyprus.

D. The Turkish declaration of 22 January 1990 under Article 46 of the Convention (art. 46) 24. On 22 January 1990, the Turkish Minister for Foreign Affairs deposited the following declaration with the Secretary-General of the Council of Europe pursuant to Article 46 of the Convention (art. 46): On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows: The Government of the Republic of Turkey acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention 394

European Court of Human Rights which relate to the exercise of jurisdiction within the meaning of Article 1 of the Convention (art. 1), performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey. This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration. 25. The above declaration was renewed for a period of three years as from 22 January 1993 in substantially the same terms. PROCEEDINGS BEFORE THE COMMISSION 26. Mrs Loizidou lodged her application (no. 15318/89) on 22 July 1989. She complained that her arrest and detention involved violations of Articles 3, 5 and 8 of the Convention (art. 3, art. 5, art. 8). She further complained that the refusal of access to her property constituted a continuing violation of Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1–1). 27. On 4 March 1991 the Commission declared the applicant’s complaints admissible in so far as they raised issues under Articles 3, 5 and 8 (art. 3, art. 5, art. 8) in respect of her arrest and detention and Article 8 and Article 1 of Protocol No. 1 (art. 8, P1–1) concerning continuing violations of her right of access to property alleged to have occurred subsequent to 29 January 1987. Her complaint under the latter two provisions (art. 8, P1–1) of a continuing violation of her property rights before 29 January 1987 was declared inadmissible. In its report of 8 July 1993 (Article 31) (art. 31), it expressed the opinion that there had been no violation of Article 3 (art. 3) (unanimously); Article 8 (art. 8) as regards the applicant’s private life (eleven votes to two); Article 5 para. 1 (art. 5–1) (nine votes to four); Article 8 (art. 8) as regards the applicant’s home (nine votes to four) and Article 1 of Protocol No. 1 (P1–1) (eight votes to five). The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310. FINAL SUBMISSIONS TO THE COURT 28. In her memorial, the applicant requested the Court to decide and declare: 395

Part II: Cyprus–Europe Relations (1983–2006) 1. that the respondent State is responsible for the continuing violations of Article 1 of Protocol No. 1 (P1–1); 2. that the respondent State is responsible for the continuing violations of Article 8 (art. 8); 3. that the respondent State is under a duty to provide just satisfaction in accordance with the provisions of Article 50 of the Convention (art. 50); and 4. that the respondent State is under a duty to permit the applicant to exercise her rights, in accordance with the findings of violations of the Protocol and Convention, freely in the future. 29. The Cypriot Government submitted that: 1. the Court has jurisdiction ratione temporis to deal with the applicant’s case because Turkey’s declaration under Article 46 of the Convention (art. 46) did not clearly exclude competence in respect of violations examined by the Commission after the Turkish declaration of 22 January 1990. Turkey is thus liable for the continuing violations complained of by the applicant in the period since 28 January 1987; 2. in any event Turkey is liable for those violations continuing in the period since 22 January 1990 and which have been examined by the Commission; 3. there is a permanent state of affairs, still continuing, in the Turkishoccupied area, which is in violation of the applicant’s rights under Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1–1). 30. In their memorial, the Turkish Government made the following submissions: 1. the applicant was irreversibly deprived of her property situated in northern Cyprus by an act of the ‘Government of the Turkish Republic of Northern Cyprus’, on 7 May 1985, at the latest; 2. the act referred to under (1) above does not constitute an act of ‘jurisdiction’ by Turkey within the meaning of Article 1 of the Convention (art. 1); 3. Turkey has not violated the rights of the applicant under Article 8 of the Convention (art. 8). AS TO THE LAW 31. The applicant and the Cypriot Government maintained that ever since the Turkish occupation of northern Cyprus the applicant had been denied access to her property and had, consequently, lost all control over it. In their submission this constituted a continued and unjustified 396

European Court of Human Rights interference with her right to the peaceful enjoyment of property in breach of Article 1 of Protocol No. 1 (P1–1) as well as a continuing violation of the right to respect for her home under Article 8 of the Convention (art. 8). The Turkish Government contested this allegation and maintained primarily that the Court lacked jurisdiction ratione temporis to examine it. I. THE GOVERNMENT’S PRELIMINARY OBJECTION 32. The Court recalls its findings in the preliminary objections judgment in the present case that it is open to Contracting Parties under Article 46 of the Convention (art. 46) to limit, as Turkey has done in its declaration of 22 January 1990, the acceptance of the jurisdiction of the Court to facts which occur subsequent to the time of deposit and that, consequently, the Court’s jurisdiction only extends to the applicant’s allegation of a continuing violation of her property rights subsequent to 22 January 1990. It must now examine that allegation since in the above-mentioned judgment it decided to join the questions raised by the objection ratione temporis to the merits (see the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310, pp. 33–34, paras. 102– 05). A. The wording of the Article 46 declaration (art. 46) 33. In their memorial on the merits, the Cypriot Government submitted that Turkey’s Article 46 (art. 46) declaration was ambiguously worded. The absence of a comma in the final sentence after the word ‘facts’, where it occurs for the second time, made it unclear whether the words ‘which have occurred subsequent to the date of deposit’ qualified ‘facts’ (when first used) or ‘judgments’ (see paragraph 24 above). The same observation was made as regards the Government’s Article 25 (art. 25) declarations. In their submission, all Convention enforcement organs, which have jurisdiction conferred upon them, enjoy jurisdiction retroactively to the time of ratification of the Convention unless there has been an express and unambiguously worded restriction ratione temporis. However, the latter requirement, they claimed, was not satisfied in the present case. 34. The Court sees no merit in this argument. In its view the reading of the present text in the manner contended by the Cypriot Government would render the last sentence of the declaration almost unintelligible. It considers that the intention of the Turkish Government to exclude from the Court’s jurisdiction all matters raised in respect of facts which occurred prior to the date of deposit of the Article 46 (art. 46) declaration is sufficiently evident from the words used in the last 397

Part II: Cyprus–Europe Relations (1983–2006) sentence and can be reasonably inferred from them. Moreover, it notes that the Commission has construed in a similar fashion identical language and punctuation in Turkey’s Article 25 (art. 25) declarations (see the decision of admissibility in applications nos. 15299/89, 15300/89 and 15318/89 (joined), Chrysostomos, Papachrysostomou and Loizidou v. Turkey, 4 March 1991, Decisions and Reports (DR) 68, pp. 250–51, paras. 50–60).

B. Further arguments of those appearing before the Court 35. The Turkish Government, for their part, contended that the process of the ‘taking’ of property in northern Cyprus started in 1974 and ripened into an irreversible expropriation by virtue of Article 159 (1) (b) of the ‘TRNC’ Constitution of 7 May 1985 (see paragraph 18 above) justified under the international law doctrine of necessity. In this context they contended that the ‘TRNC’ is a democratic and constitutional state whose Constitution was accepted by a referendum. Following a process of political and administrative evolution, the ‘TRNC’ was established by the Turkish Cypriot people in pursuance of their right to self-determination and thus was able to make valid law. Moreover, the effectual and autonomous nature of the administration in the northern part of Cyprus had been recognised in various court decisions in the United Kingdom (Hesperides Hotels Ltd and Another v. Aegean Turkish Holidays Ltd and Another [1977] 3 Weekly Law Reports 656 (Court of Appeal) and Polly Peck International PLC v. Asil Nadir and Others [1992] 2 All England Reports 238 (Court of Appeal)). Furthermore, in finding that the arrest and detention of the applicants in the case of Chrysostomos and Papachrysostomou v. Turkey were lawful, the Commission and subsequently the Committee of Ministers of the Council of Europe had recognised as valid the relevant laws of the ‘TRNC’ (see report of the Commission of 8 July 1993, paras. 143–70 and Resolution DH (95) 245 of 19 October 1995). In the Turkish Government’s submission, the applicant had thus definitively lost ownership of the land well before the crucial date of 22 January 1990, i.e. on 7 May 1985 at the latest. The judgment of the Court in the Papamichalopoulos and Others v. Greece case (of 24 June 1993, Series A no. 260-B), where the Court had found that there had been a continuing interference with the applicant’s property rights, was moreover distinguishable on the ground that the Greek Government had not raised any objection ratione temporis in that case. It followed, in their submission, that the Court was concerned in the present case with an instantaneous act which predated the Government’s acceptance of the Court’s jurisdiction under Article 46 398

European Court of Human Rights (art. 46). It was thus incompetent ratione temporis to examine the applicant’s complaints. 36. The applicant, whose submissions were endorsed by the Government of Cyprus, maintained that the fact that she had been denied access to her property ever since 1974 and, consequently, had lost all control over it constituted a continuing violation of her rights and that the jurisprudence of the Convention institutions and other international tribunals recognised this concept. She stressed that the rules of International law must be taken into account when interpreting the Convention and contended that the 1985 Constitution of the ‘TRNC’ was – as was recognised by the international community – invalid under international law, because its origin lay in the illegal use of force by Turkey. A second reason was that the policy of the Turkish authorities was based upon racial discrimination in breach of Article 14 of the Convention (art. 14) and of customary international law. Accordingly, no effect should be given to the confiscatory provisions of the 1985 Constitution. 37. In the submission of the Government of Cyprus, the denial of peaceful enjoyment of the possessions of Greek Cypriots in the occupied area has been effected by a systematic and continuing process. They denied, however, that this process had amounted to loss of ownership. Evidence for this contention was provided by the Settlement and Distribution of Land and Property of Equivalent Value Law of 28 August 1995 which, according to the Government, purports to extend what were hitherto limited permits to occupy Greek property and by the fact that Turkey alleged that there had been no confiscation of Greek property in northern Cyprus in a memorial circulated within the Committee of Ministers in 1987. 38. As explained by the Commission’s Delegate at the hearing on the preliminary objections, the Commission also considered that the applicant’s complaints under Article 1 of Protocol No. 1 (P1–1) and Article 8 of the Convention (art. 8) concerned violations which were essentially of a continuing nature. In his written observations on the preliminary objections, the Delegate had therefore taken the view that the Court has competence to deal with these complaints as far as they involved the period after 22 January 1990. Moreover, at the hearing on the merits the Delegate, with the endorsement of the applicant, asked the Court to consider whether Turkey should be estopped from introducing new facts relating to the provisions of the 1985 Constitution which had not been referred to during the proceedings before the Commission. C. The Court’s assessment 39. The Court first observes, as regards the estoppel submission, that in principle it is not prevented in its examination of the merits of a complaint 399

Part II: Cyprus–Europe Relations (1983–2006) from having regard to new facts, supplementing and clarifying those established by the Commission, if it considers them to be of relevance (see the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 51, para. 73, and the Gustafsson v. Sweden judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 655, para. 51). 40. Although in the present case the objection ratione temporis was raised by the Turkish Government in the proceedings before the Commission, there was no discussion or analysis in its admissibility decision of 4 March 1991 as to whether the matters complained of involved a continuing situation or an instantaneous act. This point, although touched on to some extent before the Court at the preliminary objections phase, was the subject of detailed submissions only in the proceedings on the merits, the new information being mentioned for the first time in the Turkish Government’s written memorial but also in the appendices to the Cypriot Government’s memorial. Against this background, the plea of estoppel must fail. 41. The Court recalls that it has endorsed the notion of a continuing violation of the Convention and its effects as to temporal limitations of the competence of Convention organs (see, inter alia, the Papamichalopoulos and Others v. Greece judgment of 24 June 1993, Series A no. 260B, pp. 69–70, paras 40 and 46, and the Agrotexim and Others v. Greece judgment of 24 October 1995, Series A no. 330-A, p. 22, para. 58). Accordingly, the present case concerns alleged violations of a continuing nature if the applicant, for purposes of Article 1 of Protocol No. 1 (P1–1) and Article 8 of the Convention (art. 8), can still be regarded – as remains to be examined by the Court – as the legal owner of the land. 42. The Court has had regard to the Turkish Government’s allegation that ‘the process of “the taking” of property in northern Cyprus started in 1974 and ripened into an irreversible expropriation by virtue of Article 159 of the “TRNC” Constitution of 7 May 1985’ (see paragraph 35 above). The formulation of this assertion suggests that in the Turkish Government’s view the applicant had not lost ownership of the land before 7 May 1985; if it should be understood differently, the Turkish Government have failed to clarify in what manner the loss of ownership occurred before that date. The Court will therefore concentrate on the Government’s submission that ownership was lost in 1985 as a result of the operation of Article 159 of the ‘TRNC’ Constitution (see paragraph 18 above). In this context the Court takes note of United Nations Security Council Resolution 541 (1983) declaring the proclamation of the establishment of the ‘TRNC’ as legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was reiterated by the Security Council in Resolution 550 (adopted on 11 May 400

European Court of Human Rights 1984). In November 1983 the Committee of Ministers of the Council of Europe also condemned the proclamation of statehood and called upon all States to deny recognition to the ‘TRNC’ (see paragraphs 19–21 above). A position to similar effect was taken by the European Community and the Commonwealth Heads of Government (see paragraphs 22–23 above). Moreover it is only the Cypriot Government which is recognized internationally as the Government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations (see the Commission’s decisions on the admissibility of applications nos 6780/74 and 6950/75, Cyprus v. Turkey, 26 May 1975, DR 2, pp. 135–36; no. 8007/77, Cyprus v. Turkey, 10 July 1978, DR 13, p. 146). 43. It is recalled that the Convention must be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 on the Law of Treaties and that Article 31 para. 3 (c) of that treaty indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’ (see, inter alia, the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 14, para. 29, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 24, para. 51, and the above-mentioned Loizidou judgment (preliminary objections), p. 27, para. 73). In the Court’s view, the principles underlying the Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention’s special character as a human rights treaty, it must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction pursuant to Article 49 of the Convention (art. 49). 44. In this respect it is evident from international practice and the various, strongly worded resolutions referred to above (see paragraph 42) that the international community does not regard the ‘TRNC’ as a State under international law and that the Republic of Cyprus has remained the sole legitimate Government of Cyprus – itself, bound to respect international standards in the field of the protection of human and minority rights. Against this background the Court cannot attribute legal validity for purposes of the Convention to such provisions as Article 159 of the fundamental law on which the Turkish Government rely. 45. The Court confines itself to the above conclusion and does not consider it desirable, let alone necessary, in the present context to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the ‘TRNC’. It notes, however, that international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, for instance as regards the registration of births, deaths and marriages, ‘the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory’ (see, in this context, Advisory Opinion on Legal Consequences for States of the Continued Presence of South 401

Part II: Cyprus–Europe Relations (1983–2006) Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16, p. 56, para. 125). 46. Accordingly, the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of the ‘TRNC’. No other facts entailing loss of title to the applicant’s properties have been advanced by the Turkish Government nor found by the Court. In this context the Court notes that the legitimate Government of Cyprus have consistently asserted their position that Greek Cypriot owners of immovable property in the northern part of Cyprus such as the applicant have retained their title and should be allowed to resume free use of their possessions, whilst the applicant obviously has taken a similar stance. 47. It follows that the applicant, for the purposes of Article 1 of Protocol No. 1 (P1–1) and Article 8 of the Convention (art. 8), must still be regarded to be the legal owner of the land. The objection ratione temporis therefore fails. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1–1) 48. The applicant contended that the continuous denial of access to her property in northern Cyprus and the ensuing loss of all control over it are imputable to the Turkish Government and constitute a violation of Article 1 of Protocol No. 1 (P1–1), which reads as follows: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions (P1–1) shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’

A. The imputability issue 49. The applicant insisted, in line with her submissions concerning the preliminary objection ratione materiae (Loizidou judgment (preliminary objections) cited above at paragraph 32, pp. 22–23, paras. 57–58), that the present case was exceptional in that the authorities alleged to have interfered with the right to the peaceful enjoyment of possessions are not those of the sole legitimate Government of the territory in which 402

European Court of Human Rights the property is situated. That particularity entailed that, in order to determine whether Turkey is responsible for the alleged violation of her rights under Article 1 of Protocol No. 1 (P1–1) with respect to her possessions in northern Cyprus, the Court should take into account the principles of State responsibility under international law. In this context Mrs Loizidou repeated her criticism that the Commission had focused too much on the direct involvement of Turkish officials in the impugned continuous denial of access. Whilst evidence of direct involvement of Turkish officials in violations of the Convention is relevant, it is not a legal condition of responsibility under public international law. She went on to contend that the concept of State responsibility rested on a realistic notion of accountability. A State was responsible in respect of events in the area for which it is internationally responsible, even if the conduct or events were outside its actual control. Thus, even acts of officials which are ultra vires may generate State responsibility. According to international law, in the applicant’s submission, the State which is recognised as accountable in respect of a particular territory remained accountable even if the territory is administered by a local administration. This was the legal position whether the local administration is illegal, in that it is the consequence of an illegal use of force, or whether it is lawful, as in the case of a protected State or other dependency. A State cannot by delegation avoid responsibility for breaches of its duties under international law, especially not for breaches of its duties under the Convention which, as illustrated by the wording of Article 1 of the Convention (art. 1), involve a guarantee to secure Convention rights. Mrs Loizidou maintained that the creation of the ‘TRNC’ was legally invalid and no State, except Turkey, or international organisation has recognised it. Since the Republic of Cyprus obviously cannot be held accountable for the part of the island occupied by Turkey, it must be Turkey which is so accountable. Otherwise the northern part of Cyprus would constitute a vacuum as regards responsibility for violations of human rights, the acceptance of which would be contrary to the principle of effectiveness which underlies the Convention. In any case there is overwhelming evidence that Turkey has effective overall control over events in the occupied area. She added that the fact that the Court, at the preliminary objections phase of the present case, had found Turkey to have jurisdiction created a strong presumption of Turkish responsibility for violations occurring in the occupied area. 50. According to the Cypriot Government, Turkey is in effective military and political control of northern Cyprus. It cannot escape from its duties under international law by pretending to hand over the administration of northern Cyprus to an unlawful ‘puppet’ regime. 403

Part II: Cyprus–Europe Relations (1983–2006) 51. The Turkish Government denied that they had jurisdiction in northern Cyprus within the meaning of Article 1 of the Convention (art. 1). In the first place they recalled the earlier case-law of the Commission which limited the jurisdiction of Turkey ‘to the border area and not to the whole of northern Cyprus under the control of the Turkish Cypriot authorities’ (see the Commission’s decisions on the admissibility of applications nos. 6780/74, 6950/75 and 8007/77, cited in paragraph 42 above). In the second place, the presumption of control and responsibility argued for by the applicants was rebuttable. In this respect it was highly significant that the Commission in the Chrysostomos and Papachrysostomou v. Turkey report of 8 July 1993 found that the applicants’ arrest, detention and trial in northern Cyprus were not ‘acts’ imputable to Turkey. Moreover, the Commission found no indication of control exercised by the Turkish authorities over the prison administration or the administration of justice by Turkish Cypriot authorities in the applicant’s case (cited above at paragraph 32). In addition, the Turkish Government contended that the question of jurisdiction in Article 1 of the Convention (art. 1) is not identical with the question of State responsibility under international law. Article 1 (art. 1) was not couched in terms of State responsibility. In their submission this provision (art. 1) required proof that the act complained of was actually committed by an authority of the defendant State or occurred under its direct control and that this authority at the time of the alleged violation exercised effective jurisdiction over the applicant. Furthermore they argued that seen from this angle, Turkey had not in this case exercised effective control and jurisdiction over the applicant since at the critical date of 22 January 1990 the authorities of the Turkish Cypriot community, constitutionally organised within the ‘TRNC’ and in no way exercising jurisdiction on behalf of Turkey, were in control of the property rights of the applicant. In this context they again emphasised that the ‘TRNC’ is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey. The administration in northern Cyprus has been set up by the Turkish Cypriot people in the exercise of its right to self-determination and not by Turkey. Moreover, the Turkish forces in northern Cyprus are there for the protection of the Turkish Cypriots and with the consent of the ruling authority of the ‘TRNC’. Neither the Turkish forces nor the Turkish Government in any way exercise governmental authority in northern Cyprus. Furthermore, in assessing the independence of the ‘TRNC’ it must also be borne in mind that there are political parties as well as democratic elections in northern Cyprus and that the Constitution was drafted by a constituent assembly and adopted by way of referendum. 52. As regards the question of imputability, the Court recalls in the first place 404

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53.

54.

55.

56.

that in its above-mentioned Loizidou judgment (preliminary objections) (pp. 23–24, para. 62) it stressed that under its established case-law the concept of ‘jurisdiction’ under Article 1 of the Convention (art. 1) is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory. Of particular significance to the present case the Court held, in conformity with the relevant principles of international law governing State responsibility, that the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises 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, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration (see the above-mentioned Loizidou judgment (preliminary objections), ibid.). In the second place, the Court emphasises that it will concentrate on the issues raised in the present case, without, however, losing sight of the general context. It is important for the Court’s assessment of the imputability issue that the Turkish Government have acknowledged that the applicant’s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘TRNC’ (see the above-mentioned preliminary objections judgment, p. 24, para. 63). Furthermore, it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property (see paragraphs 12–13 above). However, throughout the proceedings the Turkish Government have denied State responsibility for the matters complained of, maintaining that its armed forces are acting exclusively in conjunction with and on behalf of the allegedly independent and autonomous ‘TRNC’ authorities. The Court recalls that under the scheme of the Convention the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28–1, art. 31). It is not, however, bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74, the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29, and the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 50, para. 168). The Commission found that the applicant has been and continues to be denied access to the northern part of Cyprus as a result of the presence of Turkish forces in Cyprus which exercise an overall control in the border 405

Part II: Cyprus–Europe Relations (1983–2006) area (see the report of the Commission of 8 July 1993, p. 16, paras. 93– 95). The limited ambit of this finding of ‘control’ must be seen in the light of the Commission’s characterisation of the applicant’s complaint as essentially concerning freedom of movement across the buffer zone (see paragraphs 59 and 61 below). The Court, however, must assess the evidence with a view to determining the issue whether the continuous denial of access to her property and the ensuing loss of all control over it is imputable to Turkey. It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active duties in northern Cyprus (see paragraph 16 above) that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’ (see paragraph 52 above). Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention (art. 1). Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus. In view of this conclusion the Court need not pronounce itself on the arguments which have been adduced by those appearing before it concerning the alleged lawfulness or unlawfulness under international law of Turkey’s military intervention in the island in 1974 since, as noted above, the establishment of State responsibility under the Convention does not require such an enquiry (see paragraph 52 above). It suffices to recall in this context its finding that the international community considers that the Republic of Cyprus is the sole legitimate Government of the island and has consistently refused to accept the legitimacy of the ‘TRNC’ as a State within the meaning of international law (see paragraph 44 above). 57. It follows from the above considerations that the continuous denial of the applicant’s access to her property in northern Cyprus and the ensuing loss of all control over the property is a matter which falls within Turkey’s ‘jurisdiction’ within the meaning of Article 1 (art. 1) and is thus imputable to Turkey. B. Interference with property rights 58. The applicant and the Cypriot Government emphasised that, contrary to the Commission’s interpretation, the complaint is not limited to access to property but is much wider and concerns a factual situation: because of the continuous denial of access the applicant had effectively 406

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59.

60.

61.

62.

63.

lost all control over, as well as all possibilities to use, to sell, to bequeath, to mortgage, to develop and to enjoy her land. This situation, they contended, could be assimilated to a de facto expropriation within the meaning of the Court’s case-law. They denied that there had been a formal expropriation, but added that if and in so far as there had been attempts at formal expropriation the relevant enactments should be disregarded as being incompatible with international law. For the Turkish Government and the Commission the case only concerns access to property, and the right to the peaceful enjoyment of possessions does not include as a corollary a right to freedom of movement. The Turkish Government further submitted that if the applicant was held to have absolute freedom of access to her property, irrespective of the de facto political situation on the island, this would undermine the intercommunal talks, which were the only appropriate way of resolving this problem. The Court first observes from the Commission’s decision on admissibility that the applicant’s complaint under Article 1 of Protocol No. 1 (P1–1) was not limited to the question of physical access to her property. Her complaint, as set out in the application form to the Commission, was that Turkey, by refusing her access to property ‘has gradually, over the last sixteen years, affected the right of the applicant as a property owner and in particular her right to a peaceful enjoyment of her possessions, thus constituting a continuing violation of Article 1 (P1–1)’ (see the report of the Commission of 8 July 1993, p. 21, and the decision of admissibility in Chrysostomos, Papachrysostomou and Loizidou v. Turkey, DR 68, p. 228). Moreover it is this complaint as formulated above that is addressed by the applicants and the Turkish Government in both their written and oral submissions. Seen in the above light, the Court cannot accept the characterisation of the applicant’s complaint as being limited to the right to freedom of movement. Article 1 of Protocol No. 1 (P1–1) is thus applicable. With respect to the question whether Article 1 (P1–1) is violated, the Court first recalls its finding that the applicant, for purposes of this Article (P1–1), must be regarded to have remained the legal owner of the land (see paragraphs 39–47 above). However, as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy, her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1 (P1–1). Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred (see paragraphs 49–50 above), be regarded as either a deprivation of property or a control of use within the meaning of the 407

Part II: Cyprus–Europe Relations (1983–2006) first and second paragraphs of Article 1 of Protocol No. 1 (P1–1–1, P1– 1–2). However, it clearly falls within the meaning of the first sentence of that provision (P1–1) as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment (see, mutatis mutandis, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 14, para. 25). 64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the ‘TRNC’ and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey. It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial of access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1 (P1–1). III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8) 65. The applicant also alleged an unjustified interference with the right to respect for her home in violation of Article 8 of the Convention (art. 8), paragraph 1 of which (art. 8–1) provides, inter alia, that: ‘Everyone has the right to respect for … his home.’ In this respect she underlined that she had grown up in Kyrenia where her family had lived for generations and where her father and grandfather had been respected medical practitioners. She conceded that after her marriage in 1972 she had moved to Nicosia and had made her home there ever since. However, she had planned to live in one of the flats whose construction had begun at the time of the Turkish occupation of northern Cyprus in 1974 (see paragraph 12 above). As a result, it had been impossible to complete the work and subsequent events had prevented her from returning to live in what she considered as her home town. 66. The Court observes that the applicant did not have her home on the land in question. In its opinion it would strain the meaning of the notion ‘home’ in Article 8 (art. 8) to extend it to comprise property on which it is planned to build a house for residential purposes. Nor can that term be interpreted to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives. 408

European Court of Human Rights Accordingly, there has been no interference with the applicant’s rights under Article 8 (art. 8). IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 67. Article 50 of the Convention (art. 50) provides as follows: If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party. 68. In her memorial the applicant outlined the following claims under this head: (a) compensation for pecuniary damage – loss of income from the land since January 1987: 531,900 Cyprus pounds; (b) compensation for non-pecuniary damage – punitive damages to the same amount as claimed for pecuniary damage; (c) to be allowed to exercise her rights under Article 1 of Protocol No. 1 (P1–1) freely in the future; and (d) a non-specified amount in respect of costs and expenses. In their memorial the Turkish Government have not commented on the issues thus raised. Neither have these issues been discussed by those appearing before the Court at its hearing on the merits. 69. Under these circumstances the Court, taking into account the exceptional nature of the case, considers that the question of the application of Article 50 (art. 50) is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Turkish Government and the applicant. FOR THESE REASONS, THE COURT 1. Dismisses by eleven votes to six the preliminary objection ratione temporis; 2. Holds by eleven votes to six that the denial of access to the applicant’s property and consequent loss of control thereof is imputable to Turkey; 3. Holds by eleven votes to six that there has been a breach of Article 1 of Protocol No. 1 (P1–1); 4. Holds unanimously that there has been no violation of Article 8 of the Convention (art. 8); 5. Holds unanimously that the question of the application of Article 50 of the Convention (art. 50) is not ready for decision; and consequently, 409

Part II: Cyprus–Europe Relations (1983–2006) (a) reserves the said question; (b) invites the Turkish Government and the applicant to submit, within the forthcoming six months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be (18 December 1996).

49. Case of Cyprus v. Turkey (application No. 25781/94), judgment, Strasbourg, 10 May 2001 THE FACTS THE CIRCUMSTANCES OF THE CASE A. General context 1. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court’s consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in (Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996–VI, p. 222). 2. A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the ‘Turkish Republic of Northern Cyprus’ (the ‘Turkish Republic of Northern Cyprus (TRNC)’) and the subsequent enactment of the ‘TRNC Constitution’ on 7 May 1985. This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the ‘TRNC’ legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus. 3. According to the respondent Government, the ‘TRNC’ is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern 410

European Court of Human Rights Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations. 4. United Nations peacekeeping forces (‘UNFICYP’) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, intercommunal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the TurkishCypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN SecretaryGeneral’s Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be ‘bi-communal’ and ‘bi-zonal’. Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (‘CMP’) was set up to ‘look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards’ and ‘to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death’. The CMP has not yet completed its investigations. C. The instant application 5. The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to ‘decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1’. These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus.

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Part II: Cyprus–Europe Relations (1983–2006) D. The Commission’s findings of fact in the instant application 6. The Court considers it appropriate at this stage to summarise the Commission’s findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission. 1. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives 7. The applicant Government essentially claimed in their application that about 1491 Greek Cypriots were still missing twenty years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State. 8. The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In their principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons (see paragraph 16 above) rather than under the Convention. 9. The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention. 10. To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in the Commission’s opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life. 11. In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an 412

European Court of Human Rights indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons. 12. The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktash, ‘President of the TRNC’, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission’s earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries. 13. The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims’ relatives. 14. The Commission further concluded that its examination of the applicant Government’s complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for 413

Part II: Cyprus–Europe Relations (1983–2006) violations of the Convention were promised impunity and that it was doubtful whether the CMP’s investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory. 2. Alleged violations of the rights of the displaced persons to respect for their home and property 15. The Commission established the facts under this heading against the background of the applicant Government’s principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with ‘TRNC’-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the ‘TRNC’ authorities without payment of compensation and its re-assignment, together with ‘title deeds’, to State bodies, Turkish Cypriots and settlers from Turkey. 16. The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the intercommunal talks (see paragraph 16 above) and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the ‘TRNC’ authorities. 17. The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living in southern Cyprus. The reality of this situation was not contested by the respondent Government. 18. The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. 414

European Court of Human Rights Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the ‘TRNC’ authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion. 19. Nor did the respondent Government dispute the fact that GreekCypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the ‘abandoned’ property and its allocation. The beneficiaries of allocations were issued with ‘possessory certificates’ but not ‘deeds of title’ to the properties concerned. However, as from June 1989 the practice changed and thereafter ‘title deeds’ were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of ‘Article 159 § 1 (b) of the TRNC Constitution’ of 7 May 1985 and ‘Law no. 52/1995’ purporting to give effect to that provision. 20. Although the respondent Government pointed out in their submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter-communal talks sponsored by the Secretary-General of the United Nations (see paragraph 16 above), the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district. 3. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus 21. The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a 415

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22.

23.

24.

25.

416

negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the ‘TRNC’ courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus. The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, they claimed that the applicant Government actively discouraged them from taking proceedings in the ‘TRNC’. The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made. The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case-law of the ‘TRNC’ courts on the availability of remedies in the ‘TRNC’; ‘TRNC legislation’ and decisions of the ‘TRNC Council of Ministers’ on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General’s progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994–95 concerning the living conditions of Karpas Greek Cypriots, the so-called ‘Karpas Brief’. Furthermore, the Commission’s delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the ‘Karpas Brief’ as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits. The Commission considered the above-mentioned ‘Karpas Brief’ an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted

European Court of Human Rights

26.

27.

28.

29.

30.

that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN SecretaryGeneral’s progress reports on the ‘Karpas Brief’ recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any ‘TRNC legislation’ and were in the nature of administrative practices. The Commission further found that there existed a functioning court system in the ‘TRNC’ which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested. In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the ‘TRNC’ authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus. In the absence of legal proceedings before the ‘TRNC’ courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the ‘TRNC Constitution’. It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the ‘TRNC Council of Ministers’, any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts. Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications. The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren 417

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32.

33.

34.

35. 418

attending schools in the south. Until the entry into force of the decision of the ‘TRNC Council of Ministers’ of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The agelimit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced ‘entry fee’. As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a ‘vetting’ procedure in the context of confidence-building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school books were being objected to by the TurkishCypriot administration. Aside from school books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television. The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the ‘TRNC’ police or that their telephones were tapped. As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south. Concerning alleged restrictions on the freedom of association of the

European Court of Human Rights enclaved population, the Commission observed that the relevant ‘TRNC’ law on associations only covered the creation of associations by Turkish Cypriots. 4. Alleged violations in respect of the rights of Turkish Cypriots and the TurkishCypriot Gypsy community in northern Cyprus 36. The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education. 37. The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the ‘TRNC’ to aggrieved persons. 38. The Commission’s investigation into the applicant Government’s allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission’s delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998. 39. The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the ‘TRNC’ policy of full integration for the settlers. 40. Furthermore, while there was a significant incidence of emigration from the ‘TRNC’ for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the ‘TRNC’ out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses’ assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the ‘TRNC’ police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the ‘TRNC’ authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the Commission did not have 419

Part II: Cyprus–Europe Relations (1983–2006) sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention. 41. Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa. 42. In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek-language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the ‘TRNC’ authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration. THE LAW. I. PRELIMINARY ISSUES 43. The Court observes that, in the proceedings before the Commission, the respondent Government raised several objections to the admissibility of the application. The Commission, at the admissibility stage of the proceedings, considered these objections under the following heads: (1) alleged lack of jurisdiction and responsibility of the respondent State in respect of the acts complained of; (2) alleged identity of the present application with the previous applications introduced by the applicant Government; (3) alleged abuse of process by the applicant Government; (4) alleged special agreement between the respective Governments to settle the dispute by means of other international procedures; (5) alleged failure of aggrieved persons concerned by the application to exhaust domestic remedies; and (6) alleged failure by the applicant Government to comply with the six-month rule. 44. The Court further observes that the Commission, in its admissibility decision of 28 June 1996, rejected the respondent Government’s challenges under the third and fourth heads and decided to reserve to the merits stage the issues raised under the remaining heads. 420

European Court of Human Rights 45. The Court notes that on account of the respondent Government’s failure to participate in the written and oral proceedings before it (see paragraphs 11 and 12 above), the objections which Turkey relied on before the Commission have not been re-submitted by her for consideration. Although it is open to the Court in these circumstances, in application of Rule 55 of the Rules of Court, to refuse to entertain the respondent Government’s pleas of inadmissibility, it nevertheless considers it appropriate to examine them in the form of preliminary issues. It observes in this connection that the applicant Government have devoted a substantial part of their written and oral pleadings to these issues, including their relevance to the merits of their various allegations. Issues reserved by the Commission to the merits stage 1. As to the applicant Government’s locus standi 46. In the proceedings before the Commission, the respondent Government claimed that the applicant Government were not the lawful government of the Republic of Cyprus. Referring to it as the ‘Greek-Cypriot administration’, they maintained that the applicant Government lacked standing to bring the instant application. 47. The applicant Government refuted this assertion with reference, inter alia, to the Court’s conclusions in its Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections) (Series A no. 310) and to the reaction of the international community to the proclamation of the establishment of the ‘TRNC’ in 1983, in particular the two resolutions adopted by the United Nations Security Council and the resolution of the Council of Europe’s Committee of Ministers condemning this move in the strongest possible terms (see paragraph 14 above). 48. The Court, like the Commission, finds that the respondent Government’s claim cannot be sustained. In line with its Loizidou judgment (merits) (loc. cit.), it notes that it is evident from international practice and the condemnatory tone of the resolutions adopted by the United Nations Security Council and the Council of Europe’s Committee of Ministers that the international community does not recognise the ‘TRNC’ as a State under international law. The Court reiterates the conclusion reached in its Loizidou judgment (merits) that the Republic of Cyprus has remained the sole legitimate government of Cyprus and on that account their locus standi as the government of a High Contracting Party cannot therefore be in doubt (loc. cit., p. 2231, § 44; see also the above-mentioned Loizidou judgment (preliminary objections), p. 18, § 40). 49. The Court concludes that the applicant Government have locus standi to bring an application under former Article 24 (current Article 33) of the Convention against the respondent State. 421

Part II: Cyprus–Europe Relations (1983–2006) 2. As to the applicant Government’s legal interest in bringing the application 50. The respondent Government pleaded before the Commission that Resolutions DH (79) 1 and DH (92) 12 adopted by the Committee of Ministers on the previous inter-State applications (see paragraph 17 above) were res judicata of the complaints raised in the instant application which, they maintained, were essentially the same as those which were settled by the aforementioned decisions of the Committee of Ministers. 51. In their reply, the applicant Government stated that neither of the abovementioned resolutions precluded the Court’s examination of the complaints raised in the instant application. In the first place, the Committee of Ministers never took any formal decision on the findings contained in either of the Commission’s reports under former Article 31. Secondly, the application currently before the Court was to be distinguished from the earlier applications in that it set out new violations of the Convention, invoked complaints which were not the subject of any definitive finding by the Commission in its earlier reports and was, moreover, premised on the notion of continuing violations of Convention rights. 52. The Commission agreed with the applicant Government’s reasoning and rejected the respondent Government’s challenge under this head. 53. The Court, like the Commission, accepts the force of the applicant Government’s reasoning. It would add that this is the first occasion on which it has been seized of the complaints invoked by the applicant Government in the context of an inter-State application, it being observed that, as regards the previous applications, it was not open to the parties or to the Commission to refer them to the Court under former Article 45 of the Convention read in conjunction with former Article 48. It notes in this connection that Turkey only accepted the compulsory jurisdiction of the Court by its declaration of 22 January 1990 (see the Mitap and Müftüoğlu v. Turkey judgment of 25 March 1996, Reports 1996–II, p. 408, § 17). 54. Without prejudice to the question of whether and in what circumstances the Court has jurisdiction to examine a case which was the subject of a decision taken by the Committee of Ministers pursuant to former Article 32 of the Convention, it must be noted that, in respect of the previous inter-State applications, neither Resolution DH (79) 1 nor Resolution DH (92) 12 resulted in a ‘decision’ within the meaning of Article 32 § 1. This is clear from the terms of these texts. Indeed, it is to be further observed that the respondent Government accepted in their pleadings on their preliminary objections in the Loizidou case that the Committee of Ministers did not endorse the Commission’s findings in the previous inter-State cases (see the Loizidou judgment (preliminary objections) cited above, pp. 21–22, § 56). 55. The Court accordingly concludes that the applicant Government have a 422

European Court of Human Rights legitimate legal interest in having the merits of the instant application examined by the Court. 3. As to the respondent State’s responsibility under the Convention in respect of the alleged violations 56. The respondent Government disputed Turkey’s liability under the Convention for the allegations set out in the application. In their submissions to the Commission, the respondent Government claimed that the acts and omissions complained of were imputable exclusively to the ‘Turkish Republic of Northern Cyprus’ (the ‘TRNC’), an independent State established by the Turkish-Cypriot community in the exercise of its right to self-determination and possessing exclusive control and authority over the territory north of the United Nations buffer zone. The respondent Government averred in this connection that the Court, in its Loizidou judgments (preliminary objections and merits), had erroneously concluded that the ‘TRNC’ was a subordinate local administration whose acts and omissions engaged the responsibility of Turkey under Article 1 of the Convention. 57. As in the proceedings before the Commission, the applicant Government contended before the Court that the ‘TRNC’ was an illegal entity under international law since it owed its existence to the respondent State’s unlawful act of invasion of the northern part of Cyprus in 1974 and to its continuing unlawful occupation of that part of Cyprus ever since. The respondent State’s attempt to reinforce the division of Cyprus through the proclamation of the establishment of the ‘TRNC’ in 1983 was vigorously condemned by the international community, as evidenced by the adoption by the United Nations Security Council of Resolutions 541 (1983) and 550 (1984) and by the Council of Europe’s Committee of Ministers of its resolution of 24 November 1983 (see paragraph 14 above). 58. The applicant Government stressed that even if Turkey had no legal title in international law to northern Cyprus, Turkey did have legal responsibility for that area in Convention terms, given that she exercised overall military and economic control over the area. This overall and, in addition, exclusive control of the occupied area was confirmed by irrefutable evidence of Turkey’s power to dictate the course of events in the occupied area. In the applicant Government’s submission, a Contracting State to the Convention could not, by way of delegation of powers to a subordinate and unlawful administration, avoid its responsibility for breaches of the Convention, indeed of international law in general. To hold otherwise would, in the present context of northern Cyprus, give rise to a grave lacuna in the system of human-rights protection and, indeed, render the Convention system there inoperative. 423

Part II: Cyprus–Europe Relations (1983–2006) 59. The applicant Government requested the Court to find, like the Commission, that the Loizidou judgments (preliminary objections and merits) defeated the respondent Government’s arguments since they confirmed that, as long as the Republic of Cyprus was unlawfully prevented from exercising its rightful jurisdiction in northern Cyprus, Turkey had ‘jurisdiction’ within the meaning of Article 1 of the Convention and was, accordingly, accountable for violations of the Convention committed in that area. 60. In a further submission, the applicant Government requested the Court to rule that the respondent State was not only accountable under the Convention for the acts and omissions of public authorities operating in the ‘TRNC’, but also those of private individuals. By way of anticipation of their more detailed submissions on the merits, the applicant Government claimed at this stage that Greek Cypriots living in northern Cyprus were racially harassed by Turkish settlers with the connivance and knowledge of the ‘TRNC’ authorities for whose acts Turkey was responsible. 61. The Commission rejected the respondent Government’s arguments. With particular reference to paragraph 56 (pp. 2235–36) of the Court’s Loizidou judgment (merits), it concluded that Turkey’s responsibility under the Convention had now to be considered to extend to all acts of the ‘TRNC’ and that that responsibility covered the entire range of complaints set out in the instant application, irrespective of whether they related to acts or omissions of the Turkish or Turkish-Cypriot authorities. 62. The Court recalls that in the Loizidou case the respondent State denied that it had jurisdiction in northern Cyprus and to that end invoked arguments similar to those raised before the Commission in the instant case. The Court rejected those arguments in its Loizidou judgment (merits) with reference to the imputability principles developed in its preceding judgment on the respondent State’s preliminary objections to the admissibility of the case. 63. More precisely, the Court considered in its Loizidou judgment (merits) (pp. 2234–36) and in connection with that particular applicant’s plight: 52. As regards the question of imputability, the Court recalls in the first place that in its above-mentioned Loizidou judgment (preliminary objections) (pp. 23–24, § 62) it stressed that under its established case-law the concept of ‘jurisdiction’ under Article 1 of the Convention is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory. Of particular significance to the present case the Court held, in conformity with the relevant principles of 424

European Court of Human Rights international law governing State responsibility, that the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises 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, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. … 54. It is important for the Court’s assessment of the imputability issue that the Turkish Government have acknowledged that the applicant’s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘TRNC’… Furthermore, it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property… However, throughout the proceedings the Turkish Government have denied State responsibility for the matters complained of, maintaining that its armed forces are acting exclusively in conjunction with and on behalf of the allegedly independent and autonomous ‘TRNC’ authorities. … 56. It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active duties in northern Cyprus … that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’ … Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus.’ 64. It is of course true that the Court in the Loizidou case was addressing an individual’s complaint concerning the continuing refusal of the authorities to allow her access to her property. However, it is to be observed that the Court’s reasoning is framed in terms of a broad statement of principle as regards Turkey’s general responsibility under the Convention for the policies and actions of the ‘TRNC’ authorities. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other 425

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65.

66.

67.

68.

support. It follows that, in terms of Article 1 of the Convention, Turkey’s ‘jurisdiction’ must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey. In the above connection, the Court must have regard to the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, ‘to ensure the observance of the engagements undertaken by the High Contracting Parties’ (see the Loizidou judgment (preliminary objections) cited above, p. 31, § 93). Having regard to the applicant Government’s continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of humanrights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court. The Court observes that the applicant Government raise the issue of imputability throughout their pleadings on the merits. Having regard to its conclusion on this issue, the Court does not consider it necessary to re-address the matter when examining the substance of the applicant Government’s complaints under the Convention. The Court concludes, accordingly, and subject to its subsequent considerations on the issue of private parties (see paragraph 81 below), that the matters complained of in the instant application fall within the ‘jurisdiction’ of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention. As to the applicant Government’s further claim that this ‘jurisdiction’ must also be taken to extend to the acts of private parties in northern Cyprus who violate the rights of Greek Cypriots or Turkish Cypriots living there, the Court considers it appropriate to revert to this matter when examining the merits of the specific complaints raised by the applicant Government in this context. It confines itself to noting at this stage that the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State’s responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention.

4. As to the requirement to exhaust domestic remedies 69. The respondent Government maintained in the proceedings before the 426

European Court of Human Rights Commission that the ‘TRNC’ had a fully developed system of independent courts which were accessible to every individual. Furthermore, Greek Cypriots and Maronites living in northern Cyprus were regarded as ‘TRNC’ citizens and enjoyed the same rights and remedies as Turkish Cypriots living there. To illustrate their view of the effectiveness of local remedies, the respondent Government drew the Commission’s attention to cases in which Greek Cypriots living in the Karpas region of northern Cyprus successfully sued the Attorney-General of the ‘TRNC’ under the Civil Wrongs Law in respect of property matters. The respondent Government claimed in this connection that the applicant Government actively discouraged Greek Cypriots and Maronites living in northern Cyprus from recognising ‘TRNC’ institutions, with the result that they did not seek redress for their grievances through the ‘TRNC’ legal system. 70. The applicant Government, in the proceedings before the Court, maintained their opposition to the above arguments. They stressed that the description given by the respondent Government of the TRNC’s constitutional and legal order disregarded the context of total unlawfulness in which the ‘constitution and laws’ were created. The applicant Government reiterated their view that the establishment of the TRNC in 1983 and its legal and constitutional apparatus stemmed directly from the aggression waged against the Republic of Cyprus by Turkey in 1974. This aggression continued to manifest itself in the continuing unlawful occupation of northern Cyprus. The applicant Government contended that, having regard to the continuing military occupation and to the fact that the ‘TRNC’ was a subordinate local administration of the respondent State, it was unrealistic to expect that the local administrative or judicial authorities could issue effective decisions against persons exercising authority with the backing of the occupation army in order to remedy violations of human rights committed in furtherance of the general policies of the regime in the occupied area. 71. The applicant Government stated before the Court that their primary starting point was that the relevant applicable law in northern Cyprus remained that of the Republic of Cyprus and that it was inappropriate to consider other laws. However if, and only if, the Court were minded to consider such laws, this should not lead to approval of the Commission’s findings and reasoning in relation to Articles 6, 13 and former Article 26 of the Convention. They submitted that, contrary to the Commission’s view, it was not a necessary corollary of the ‘TRNC’ being considered a subordinate local administration of the respondent State that the remedies available before the ‘TRNC’ had to be regarded as ‘domestic remedies’ of the respondent State for the purposes of former Article 26 of the Convention. The applicant Government pleaded in this connection that even the respondent State did not consider ‘TRNC’ remedies to be remedies provided by Turkey as a 427

Part II: Cyprus–Europe Relations (1983–2006) Contracting Party. Moreover, given that the local administration was subordinated to and controlled by the respondent State not through the principle of legality and democratic rule but through military control and occupation, ‘TRNC’ courts could not be considered to be ‘established by law’ within the meaning of Article 6 of the Convention. The applicant Government claimed that it would be wrong in such circumstances to expect aggrieved individuals to have recourse to remedies for the purposes of the former Article 26 exhaustion requirement when these remedies did not fulfil the standards of either Article 6 or, it must follow, Article 13 of the Convention. 72. In the applicant Government’s submission, the Commission, at paragraphs 123 and 124 of its report, misconstrued the scope of the Advisory Opinion of the International Court of Justice in the Namibia case (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16). 73. The Commission, for its part, recalled that, with the exception of the respondent State, the TRNC’s claim to independent statehood was rejected and condemned by the international community. However, it further observed that the fact that the ‘TRNC’ regime de facto existed and exercised de facto authority under the overall control of Turkey was not without consequences for the question of whether the remedies which the respondent State claimed were available within the ‘TRNC system’ required to be exhausted by aggrieved individuals as a precondition to the admissibility of their complaints under the Convention. The Commission noted in this respect, and with reference to the abovementioned Advisory Opinion of the International Court of Justice in the Namibia case (see paragraph 85 above), that even if the legitimacy of a State was not recognised by the international community, ‘international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, … the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory’ (loc. cit. p. 56, § 125). On the understanding that the remedies relied on by the respondent State were intended to benefit the entire population of northern Cyprus, and to the extent that such remedies could be considered effective, account must in principle be taken of them for the purposes of former Article 26 of the Convention. 74. In the Commission’s conclusion, whether or not a particular remedy could be regarded as effective, and had therefore to be used, had to be determined in relation to the specific complaint at issue. The Commission observed in this regard that, to the extent that the applicant Government alleged that the complaints set out in the application resulted from administrative practices imputable to the respondent State, proof of 428

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75.

76.

77.

78.

the existence of such practices depended on the absence of effective remedies in relation to the acts alleged to constitute the said practices. Having regard to these considerations, the Commission concluded that, for the purposes of former Article 26 of the Convention, remedies available in northern Cyprus were to be regarded as ‘domestic remedies’ of the respondent State and that the question of their effectiveness had to be considered in the specific circumstances where it arose. The Court notes that the Commission avoided making general statements on the validity of the acts of the ‘TRNC’ authorities from the standpoint of international law and confined its considerations to the Conventionspecific issue of the application of the exhaustion requirement contained in former Article 26 of the Convention in the context of the ‘constitutional’ and ‘legal’ system established within the ‘TRNC’. The Court endorses this approach. It recalls in this connection that, although the Court in its Loizidou judgment (merits) refused to attribute legal validity to such provisions as ‘Article 159 of the TRNC Constitution’, it did so with respect to the Convention (p. 2231, § 44). This conclusion was all the more compelling since the Article in question purported to vest in the ‘TRNC’ authorities, irreversibly and without payment of any compensation, the applicant’s rights to her land in northern Cyprus. Indeed, the Court in its judgment did not ‘consider it desirable, let alone necessary, in the present context to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the ‘TRNC’ (ibid., p. 2231, § 45). In the Court’s opinion, and without in any way putting in doubt either the view adopted by the international community regarding the establishment of the ‘TRNC’ (see paragraph 14 above) or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see paragraph 61 above), it cannot be excluded that former Article 26 of the Convention requires that remedies made available to individuals generally in northern Cyprus to enable them to secure redress for violations of their Convention rights have to be tested. The Court, like the Commission, would characterise the developments which have occurred in northern Cyprus since 1974 in terms of the exercise of de facto authority by the ‘TRNC’. As it observed in its Loizidou judgment (merits) with reference to the Advisory Opinion of the International Court of Justice in the Namibia case, international law recognises the legitimacy of certain legal arrangements and transactions in situations such as the one obtaining in the ‘TRNC’, for instance as regards the registration of births, deaths, and marriages, ‘the effects of which can only be ignored to the detriment of the inhabitants of the [t]erritory’ (loc. cit., p. 2231, § 45). The Court disagrees with the applicant Government’s criticism of the Commission’s reliance on this part of the Advisory Opinion. In its view, 429

Part II: Cyprus–Europe Relations (1983–2006) and judged solely from the standpoint of the Convention, the Advisory Opinion confirms that where it can be shown that remedies exist to the advantage of individuals and offer them reasonable prospects of success in preventing violations of the Convention, use should be made of such remedies. In reaching this conclusion, the Court considers that this requirement, applied in the context of the ‘TRNC’, is consistent with its earlier statement on the need to avoid in the territory of northern Cyprus the existence of a vacuum in the protection of the human rights guaranteed by the Convention (see paragraph 78 above). 79. It appears evident to the Court, despite the reservations the Greek- Cypriot community in northern Cyprus may harbour regarding the ‘TRNC’ courts, that the absence of such institutions would work to the detriment of the members of that community. Moreover, recognising the effectiveness of those bodies for the limited purpose of protecting the rights of the territory’s inhabitants does not, in the Court’s view and following the Advisory Opinion of the International Court of Justice, legitimise the ‘TRNC’ in any way. 80. The Court recalls that, in its Advisory Opinion on Namibia, the International Court of Justice stated the following (1971 ICJ Reports, p. 56, § 125): In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory. 81. The Court observes that this passage was included in the Opinion as a result of various arguments made in the course of the proceedings preparatory to its adoption. Thus, the representative of the Netherlands pointed out to the International Court of Justice that the nonrecognition of South Africa’s illegal rule in Namibia ‘does not exclude taking into account the fact of exercise of powers in so far as that taking into account is necessary in order to do justice to the legitimate interest of the individual [who] is, in fact, subjected to that power’ (Pleadings, vol. II, p. 130). The representative of the United States said that ‘[i]t would, for example, be a violation of the rights of individuals if a foreign State refused to recognise the right of Namibians to marry in accordance with the laws in force … or would consider their children to be illegitimate. A contract for the sale of goods also should not be 430

European Court of Human Rights declared invalid merely because it was entered into in accordance with ordinary commercial laws applied to Namibia by South Africa’ (Pleadings, vol. II, p. 503). These statements, by logical necessity, must be taken to extend to decisions taken by courts and relating to such everyday relations. The above citations show that, despite having been invited to do so by the Secretary-General of the United Nations, the International Court resolutely rejected the approach refusing any effect to unlawful de facto regimes. 82. The Court notes that this rejection was echoed and amplified in the separate opinions of Judges Dillard, de Castro and Onyeama. Judge Dillard (1971 ICJ Reports, pp. 166–67) pointed out that the maxim ‘ex injuria jus non oritur’ was not an absolute one and added that ‘[w]ere it otherwise the general interest in the security of transactions would be too greatly invaded and the cause of minimising needless hardship and friction would be hindered rather that helped’. Judge de Castro (ibid., pp. 218–19) drew a distinction between acts of the de facto authorities in Namibia relating to acts or transactions ‘relating to public property, concessions, etc.’ and ‘acts and rights of private persons’ which ‘should be regarded as valid (validity of entries in the civil registers and in the Land Registry, validity of marriages, validity of judgments of the civil courts, etc.)’. Judge Onyeama said that, although there was an obligation for third States not to recognise the legality of South Africa’s presence in Namibia, that duty did not necessarily extend ‘to refusing to recognise the validity of South Africa’s acts on behalf of or concerning Namibia in view of the fact that the administration of South Africa over Namibia (illegal though it is) still constitutes the de facto government of the territory’. 83. It is to be noted that the International Court’s Advisory Opinion, read in conjunction with the pleadings and the explanations given by some of that court’s members, shows clearly that, in situations similar to those arising in the present case, the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled. 84. The Court notes that the view expressed by the International Court of Justice in the context described in the preceding paragraph is by no means an isolated one. It is confirmed both by authoritative writers on 431

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85.

86.

87.

88.

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the subject of de facto entities in international law and by existing practice, particularly judgments of domestic courts on the status of decisions taken by the authorities of de facto entities. This is true, in particular, for private-law relationships and acts of organs of de facto authorities relating to such relationships. Some State organs have gone further and factually recognised even acts related to public-law situations, for example by granting sovereign immunity to de facto entities or by refusing to challenge takings of property by the organs of such entities. For the Court, the conclusion to be drawn is that it cannot simply disregard the judicial organs set up by the ‘TRNC’ in so far as the relationships at issue in the present case are concerned. It is in the very interest of the inhabitants of the ‘TRNC’, including Greek Cypriots, to be able to seek the protection of such organs; and if the ‘TRNC’ authorities had not established them, this could rightly be considered to run counter to the Convention. Accordingly, the inhabitants of the territory may be required to exhaust these remedies, unless their inexistence or ineffectiveness can be proved – a point to be examined on a case-by-case basis. The Court, like the Commission, will thus examine in respect of each of the violations alleged by the applicant Government whether the persons concerned could have availed themselves of effective remedies to secure redress. It will have regard in particular to whether the existence of any remedies is sufficiently certain not only in theory but in practice and whether there are any special circumstances which absolve the persons concerned by the instant application from the obligation to exhaust the remedies which, as alleged by the respondent Government before the Commission, were at their disposal. The Court recalls in this latter respect that the exhaustion rule is inapplicable where an administrative practice, namely a repetition of acts incompatible with the Convention and official tolerance by the State authorities, has been shown to exist and is of such a nature as to make proceedings futile or ineffective (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996–IV, p. 1210, §§ 66–67). In view of the above considerations, the Court does not consider it necessary at this stage to examine the applicant Government’s broader criticism of the court and administrative system in the ‘TRNC’ under Articles 6 and 13 of the Convention. The Court does wish to add, however, that the applicant Government’s reliance on the illegality of the ‘TRNC’ courts seems to contradict the assertion made by that same Government that Turkey is responsible for the violations alleged in northern Cyprus – an assertion which has been accepted by the Court (see paragraphs 75–81 above). It appears indeed difficult to admit that a State is made responsible for the acts occurring in a territory unlawfully occupied and administered by it and to deny that

European Court of Human Rights State the opportunity to try to avoid such responsibility by correcting the wrongs imputable to it in its courts. To allow that opportunity to the respondent State in the framework of the present application in no way amounts to an indirect legitimisation of a regime which is unlawful under international law. The same type of contradiction arises between the alleged unlawfulness of the institutions set up by the ‘TRNC’ and the applicant Government’s argument, to be examined at a later stage (see, for example paragraphs 318–21 below), that there has been a breach of Article 13 of the Convention: it cannot be asserted, on the one hand, that there has been a violation of that Article because a State has not provided a remedy while asserting, on the other hand, that any such remedy, if provided, would be null and void. 89. The Court concludes accordingly that, for the purposes of former Article 26 (current Article 35 § 1) of the Convention, remedies available in the ‘TRNC’ may be regarded as ‘domestic remedies’ of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises. 5. As to the requirement of the six-month rule 90. The Court observes that although the Commission reserved this issue to the merits stage, neither Government submitted any arguments thereon; nor have the applicant Government reverted to the matter in their written or oral pleadings before the Court. 91. The Court, in line with the Commission’s approach, confirms that in so far as the applicant Government have alleged continuing violations resulting from administrative practices, it will disregard situations which ended six months before the date on which the application was introduced, namely 22 November 1994. Therefore, and like the Commission, the Court considers that practices which are shown to have ended before 22 May 1994 fall outside the scope of its examination. III. ALLEGED VIOLATIONS OF THE RIGHTS OF GREEK-CYPRIOT MISSING PERSONS AND THEIR RELATIVES A. Greek-Cypriot missing persons 1. As to the facts established by the Commission 92. At the hearing before the Court the applicant Government stated that the number of missing persons was currently 1485 and that the evidence clearly pointed to the fact that the missing persons were either detained by, or were in the custody of or under the actual authority and responsibility of, the Turkish army or its militia and were last seen in areas which were under the effective control of the respondent State. They maintained, in addition, that the Court should proceed on the 433

Part II: Cyprus–Europe Relations (1983–2006) assumption that the missing persons were still alive, unless there was evidence to the contrary. 93. The Court notes at the outset that the applicant Government have not contested the facts as found by the Commission (see paragraphs 25–27 above). For its part, it does not see any exceptional circumstances which would lead it to depart from the Commission’s findings of fact, bearing in mind the latter’s careful analysis of all material evidence including the findings reached by it in its 1976 and 1983 reports. Like the Commission, the Court does not consider it appropriate to estimate the number of persons who fall into the category of ‘missing persons’. It limits itself to observing that figures are communicated by the applicant Government to the United Nations Committee on Missing Persons (‘CMP’) and revised in accordance with the most recent information which becomes available. 94. Furthermore, the Court shares the Commission’s concern to limit its inquiry to ascertaining the extent, if any, to which the authorities of the respondent State have clarified the fate or whereabouts of the missing persons. It is not its task to make findings on the evidence on whether any of these persons are alive or dead or have been killed in circumstances which engage the liability of the respondent State. Indeed, the applicant Government have requested the Court to proceed on the assumption that the persons at issue are still alive. The Court will revert to this point in the context of the applicant Government’s allegations under Article 2 of the Convention. 95. On the above understanding the Court will examine the merits of the applicant Government’s allegations. 2. As to the merits of the applicant Government’s complaints (a) Article 2 of the Convention 96. The applicant Government requested the Court to find that the facts disclosed a continuing violation of Article 2 from the standpoint of both the procedural and substantive obligations contained in that provision. Article 2 provides as relevant: ‘1. Everyone’s right to life shall be protected by law…’ 97. In the applicant Government’s submission, the procedural violation alleged was committed as a matter of administrative practice, having regard to the continuing failure of the authorities of the respondent State to conduct any investigation whatsoever into the fate of the missing persons. In particular, there was no evidence that the authorities of the respondent State had carried out searches for the dead or wounded, let alone concerned themselves with the burial of the dead. Furthermore, the respondent State, by virtue of the presence of its armed forces, directly 434

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98.

99.

100.

101.

102.

continued to prevent investigations in the occupied area to trace those persons who were still missing and continued to refuse to account for their fate. The applicant Government further stressed that the procedural obligation to protect the right to life devolving on the respondent State in application of Article 2 could not be discharged with reference to the ongoing work of the CMP (see paragraph 16 above), having regard to the limited scope of that body’s mandate and to the characteristics of an ‘effective investigation’ as defined in the Court’s case-law in the context of the Convention provision at issue. From the standpoint of the substantive obligation contained in Article 2, the applicant Government requested the Court to find and declare, in line with the Commission’s conclusion, that the respondent State had failed to take the necessary operational measures to protect the right to life of the missing persons all of whom had disappeared in lifethreatening circumstances known to, and indeed, created by, the respondent State. The Commission observed that the missing persons had disappeared in circumstances which were life-threatening, having regard, inter alia, to the fact that their disappearance had occurred at a time when there was clear evidence of large-scale killings including as a result of acts of criminal behaviour outside the fighting zones. For the Commission, and with reference to the Court’s case-law, the authorities of the respondent State had a positive obligation under Article 2 to conduct effective investigations into the circumstances surrounding the disappearances. Moreover, this obligation had to be seen as a continuing one in view of the consideration that the missing persons might have lost their lives as a result of crimes not subject to limitation. The Commission found accordingly that Article 2 had been violated by virtue of a lack of effective investigation by the authorities of the respondent State and that that failing could not be compensated for by the respondent State’s contribution to work undertaken by the CMP. The Court observes that the applicant Government contend first and foremost that the missing persons must be presumed to be still alive unless there is clear evidence to the contrary (see paragraph 119 above). Although the evidence adduced before the Commission confirms a very high incidence of military and civilian deaths during the military operations of July and August 1974, the Court reiterates that it cannot speculate as to whether any of the missing persons have in fact been killed by either the Turkish forces or Turkish-Cypriot paramilitaries into whose hands they may have fallen. It is true that the head of the ‘TRNC’, Mr Denktash, broadcast a statement on 1 March 1996 admitting that the Turkish army had handed over Greek-Cypriot prisoners to TurkishCypriot fighters under Turkish command and that these prisoners had 435

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103.

104.

105.

106. 436

then been killed (see paragraph 25 above). It is equally the case that, in February 1998, Professor Yalçin Küçük, who was a serving Turkish officer in 1974, asserted that the Turkish army had engaged in widespread killings of civilians (see paragraph 25 above). Although all of these statements have given rise to undoubted concern, especially in the minds of the relatives of the missing persons, the Court considers that they are insufficient to establish the respondent State’s liability for the deaths of any of the missing persons. It is mere speculation that any of these persons were killed in the circumstances described in these accounts. The Court notes that the evidence given of killings carried out directly by Turkish soldiers or with their connivance relates to a period which is outside the scope of the present application. Indeed, it is to be noted that the Commission was unable to establish on the facts whether any of the missing persons were killed in circumstances for which the respondent State can be held responsible under the substantive limb of Article 2 of the Convention. The Court concludes, therefore, that it cannot accept the applicant Government’s allegations that the facts disclose a substantive violation of Article 2 of the Convention in respect of any of the missing persons. For the Court, the applicant Government’s allegations must, however, be examined in the context of a Contracting State’s procedural obligation under Article 2 to protect the right to life. It recalls in this connection that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State (see, mutatis mutandis, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998–I, p. 329, § 105) or by non-State agents (see, mutatis mutandis, the Ergi v. Turkey judgment of 28 July 1998, Reports 1998–IV, p. 1778, § 82; the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998– VI, p. 2438, § 100; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 103, ECHR 1999–IV). The Court recalls that there is no proof that any of the missing persons have been unlawfully killed. However, in its opinion, and of relevance to the instant case, the above-mentioned procedural obligation also arises upon proof of an arguable claim that an individual, who was last seen in the custody of agents of the State, subsequently disappeared in a context which may be considered life-threatening. Against this background, the Court observes that the evidence bears out

European Court of Human Rights the applicant Government’s claim that many persons now missing were detained either by Turkish or Turkish-Cypriot forces. Their detention occurred at a time when the conduct of military operations was accompanied by arrests and killings on a large scale. The Commission correctly described the situation as life-threatening. The above-mentioned broadcast statement of Mr Denktash and the later report of Professor Küçük, if not conclusive of the respondent State’s liability for the death of missing persons are, at the very least, clear indications of the climate of risk and fear obtaining at the material time and of the real dangers to which detainees were exposed. 107. That the missing persons disappeared against this background cannot be denied. The Court cannot but note that the authorities of the respondent State have never undertaken any investigation into the claims made by the relatives of the missing persons that the latter had disappeared after being detained in circumstances in which there was real cause to fear for their welfare. It must be noted in this connection that there was no official follow-up to Mr Denktash’s alarming statement. No attempt was made to identify the names of the persons who were reportedly released from Turkish custody into the hands of Turkish-Cypriot paramilitaries or to inquire into the whereabouts of the places where the bodies were disposed of. It does not appear either that any official inquiry was made into the claim that Greek-Cypriot prisoners were transferred to Turkey. 108. The Court agrees with the applicant Government that the respondent State’s procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP. Like the Commission, the Court notes 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 (see paragraph 27 above). 109. Having regard to the above considerations, the Court concludes that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of GreekCypriot missing persons who disappeared in life-threatening circumstances. (b) Article 4 of the Convention 110. The applicant Government requested the Court to find and declare that the circumstances of the case also disclosed a breach of Article 4 of the Convention, which states as relevant: ‘1. No one shall be held in slavery or servitude. …’ 437

Part II: Cyprus–Europe Relations (1983–2006) 111. The applicant Government contended that, in the absence of any conclusive findings that the missing persons were now dead, it should be presumed that they were still being detained in conditions which, given the length of the period which had elapsed since the events of 1974, should be described as servitude. In the applicant Government’s view, this proposition could only be contradicted if the Court were to find it proved that the missing persons were now dead, in which case it should be concluded that the respondent State was in breach of its obligations under Article 2. 112. The Commission found that there had been no breach of Article 4, being of the view that there was nothing in the evidence which could support the assumption that during the relevant period any of the missing persons were still in Turkish custody and were being held in conditions which violated Article 4. 113. The Court agrees with the Commission’s finding. It notes in this respect that, like the Commission, it has refused to speculate on the fate or whereabouts of the missing persons. Furthermore, it has accepted the facts as established by the Commission. 114. It follows that no breach of Article 4 of the Convention has been established. (c) Article 5 of the Convention 115. The applicant Government maintained that Article 5 of the Convention had been breached by the respondent Government as a matter of administrative practice. Article 5 provides as relevant: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …’ 116. According to the applicant Government, the fact that the authorities of the respondent State had failed to carry out a prompt and effective investtigation into the well-documented circumstances surrounding the detention and subsequent disappearance of a large but indefinite number of Greek-Cypriot missing persons gave rise to a violation of the procedural obligations inherent in Article 5. The applicant Government reiterated their assertion that the respondent State was presumed responsible for the fate of the missing persons since the evidence clearly established that they were last seen in the control and custody of the Turkish military or their agents. 117. Furthermore, the detention of the missing persons could not be justified with reference to the requirements of Article 5 and was to be considered unlawful. The applicant Government averred in this connection that the respondent State had failed to keep any accurate or reliable records of the 438

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118.

119.

120.

121.

persons detained by its authorities and agents or to take any other effective measures which would have served to safeguard against the risk of disappearance. The Commission concluded that the respondent State had failed in its obligation to carry out a prompt and effective investigation in respect of an arguable claim that Greek-Cypriot persons who were detained by Turkish forces or their agents in 1974 disappeared thereafter. For the Commission, a breach of the Article 5 obligation had to be construed as a continuing violation, given that the Commission had already found in its 1983 report on application no. 8007/77 that no information had been provided by the respondent Government on the fate of missing Greek Cypriots who had disappeared in Turkish custody. The Commission stressed that there could be no limitation in time as regards the duty to investigate and inform, especially as it could not be ruled out that the detained persons who had disappeared might have been the victims of the most serious crimes, including war crimes or crimes against humanity. The Commission, on the other hand, found there had been no violation of Article 5 by virtue of actual detention of Greek-Cypriot missing persons. It noted in this regard that there was no evidence to support the assumption that during the period under consideration any missing Greek Cypriots were still detained by the Turkish or Turkish-Cypriot authorities. The Court stresses at the outset that the unacknowledged detention of an individual is a complete negation of the guarantees of liberty and security of the person contained in Article 5 of the Convention and a most grave violation of that Article. Having assumed control over a given individual, it is incumbent on the authorities to account for his or her whereabouts. It is for this reason that Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see the Kurt v. Turkey judgment of 25 May 1998, Reports 1998–III, p. 1185, § 124). The Court refers to the irrefutable evidence that Greek Cypriots were held by Turkish or Turkish-Cypriot forces. There is no indication of any records having been kept of either the identities of those detained or the dates or location of their detention. From a humanitarian point of view, this failing cannot be excused with reference either to the fighting which took place at the relevant time or to the overall confused and tense state of affairs. Seen in terms of Article 5 of the Convention, the absence of such information has made it impossible to allay the concerns of the relatives of the missing persons about the latter’s fate. Notwithstanding the impossibility of naming those who were taken into custody, the res439

Part II: Cyprus–Europe Relations (1983–2006) pondent State should have made other inquiries with a view to accounting for the disappearances. As noted earlier, there has been no official reaction to new evidence that Greek-Cypriot missing persons were taken into Turkish custody (see paragraph 134 above). 122. The Court has addressed this allegation from the angle of the procedural requirements of Article 5 of the Convention and the obligations devolving on the respondent State as a Contracting Party to the Convention. Like the Commission, and without questioning the value of the humanitarian work being undertaken by the CMP, the Court reiterates that those obligations cannot be discharged with reference to the nature of the CMP’s investigation (see paragraph 135 above). 123. The Court concludes that, during the period under consideration, there has been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the missing Greek-Cypriot persons in respect of whom there is an arguable claim that they were in custody at the time they disappeared. 124. The Court, on the other hand finds, like the Commission, that it has not been established that during the period under consideration any of the Greek-Cypriot missing persons were actually being detained by the Turkish-Cypriot authorities. (d) Articles 3, 6, 8, 13, 14 and 17 of the Convention 125. The Court observes that, at the merits stage of the proceedings before the Commission, the applicant Government submitted that the facts of the case disclosed violations of the above-mentioned Articles. The Commission concluded that these complaints were outside the scope of its admissibility decision and on that account could not be examined. 126. The Court further observes that the applicant Government have not pursued these complaints either in their memorial or at the public hearing; nor have they sought to dispute the Commission’s interpretation of the scope of its admissibility decision. In these circumstances the Court considers that there is no reason to consider either its jurisdiction to examine these complaints or their merits. The Court concludes therefore that it is not necessary to examine the applicant Government’s complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons. B. Greek-Cypriot missing persons’ relatives 1. Article 3 of the Convention 127. The applicant Government, for the reasons given by the Commission, requested the Court to rule that the continuing suffering of the families of missing persons constituted not only a continuing but also an aggra440

European Court of Human Rights vated violation of Article 3 of the Convention, which states: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ 128. In the Commission’s opinion, the circumstances relied on by the applicant Government disclosed a continuing violation of Article 3 regarding the relatives of the missing persons. For the Commission, in view of the circumstances in which their family members disappeared following a military intervention during which many persons were killed or taken prisoner and where the area was subsequently sealed off and became inaccessible to the relatives, the latter must undoubtedly have suffered most painful uncertainty and anxiety. Furthermore, their mental anguish did not vanish with the passing of time. The Commission found that the treatment to which the relatives of the missing persons were subjected could properly be characterised as inhuman within the meaning of Article 3. 129. The Court recalls that the question whether a family member of a ‘disappeared person’ is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the person concerned a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent–child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court further recalls that the essence of such a violation does not so much lie in the fact of the ‘disappearance’ of the family member but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Çakici v. Turkey [GC], no. 23657/94, § 98, ECHR 1999–IV). 130. The Court observes that the authorities of the respondent State have failed to undertake any investigation into the circumstances surrounding the disappearance of the missing persons. In the absence of any information about their fate, the relatives of persons who went missing during the events of July and August 1974 were condemned to live in a prolonged state of acute anxiety which cannot be said to have been erased with the passage of time. The Court does not consider, in the circumstances of this case, that the fact that certain relatives may not have actually witnessed the detention of family members or complained about such to the authorities of the respondent State deprives them of victim status under Article 3. It recalls that the 441

Part II: Cyprus–Europe Relations (1983–2006) military operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced separation of families. The overall context must still be vivid in the minds of the relatives of persons whose fate has never been accounted for by the authorities. They endure the agony of not knowing whether family members were killed in the conflict or are still in detention or, if detained, have since died. The fact that a very substantial number of Greek Cypriots had to seek refuge in the south coupled with the continuing division of Cyprus must be considered to constitute very serious obstacles to their quest for information. The provision of such information is the responsibility of the authorities of the respondent State. This responsibility has not been discharged. For the Court, the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons attains a level of severity which can only be categorised as inhuman treatment within the meaning of Article 3. 131. For the above reasons, the Court concludes that, during the period under consideration, there has been a continuing violation of Article 3 of the Convention in respect of the relatives of the Greek-Cypriot missing persons. 2. Articles 8 and 10 of the Convention 132. The applicant Government further submitted in their memorial that the persistent failure of the authorities of the respondent State to account to the families of the missing persons constituted a grave disregard for their right to respect for family life and, in addition, a breach of their right to receive information. In the applicant Government’s submission the responsibility of the respondent State was engaged in respect of Articles 8 and 10 of the Convention, both of which provisions should be considered to have been breached in the circumstances. 133. The Court observes that the Commission was of the view that the applicant Government’s complaints under Articles 8 and 10 were in essence directed at the treatment to which the relatives of the missing persons were subjected in their attempts to ascertain the latter’s fate. On that understanding the Commission confined its examination to the issues which such treatment raised from the standpoint of Article 3. 134. The Court agrees with the Commission’s approach. In view of its conclusion under Article 3, with its emphasis on the effect which the lack of information had on the families of missing persons, it finds it unnecessary to examine separately the complaints which the applicant Government have formulated in terms of Articles 8 and 10 of the Convention.

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European Court of Human Rights IV. ALLEGED VIOLATIONS OF THE RIGHTS OF DISPLACED PERSONS TO RESPECT FOR THEIR HOME AND PROPERTY A. As to the facts established by the Commission 135. The applicant Government endorsed the facts as found by the Commission (see paragraphs 30–33 above). In respect of those findings they requested the Court to conclude that the facts disclosed violations of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 as well as of Article 14 of the Convention taken in conjunction with these provisions. They further submitted that the facts at issue gave rise to violations of Articles 3, 17 and 18 of the Convention. 136. The Court considers that there are no exceptional circumstances which would lead it to take a different view of the facts established by the Commission (see paragraphs 30–33 above). It notes in this regard that the Commission was able to draw on the findings contained in its 1976 and 1983 reports and took into account the impact of ‘legislative’ and other texts in force in the ‘TRNC’ on the enjoyment of the rights invoked by the applicant Government. It further notes that the respondent Government did not contest the accuracy of several allegations of fact made by the applicant Government in the proceedings before the Commission (see paragraph 29 above). 137. The Court will accordingly examine the merits of the applicant Government’s complaints with reference to the facts established by the Commission. B. As to the merits of the applicant Government’s complaints 1. Article 8 of the Convention 138. The applicant Government maintained that it was an unchallengeable proposition that it was the respondent State’s actions which had prevented the displaced Greek Cypriots from returning to their homes, in violation of Article 8 of the Convention which provides: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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.’ 139. The applicant Government declared that the policy of the respondent State, aimed at the division of Cyprus along racial lines, affected 211,000 displaced Greek Cypriots and their children as well as a number of 443

Part II: Cyprus–Europe Relations (1983–2006) Maronites, Armenians, Latins and individual citizens of the Republic of Cyprus who had exercised the option under the Constitution to be members of the Greek-Cypriot community. They submitted that the continuing refusal of the ‘TRNC’ authorities to allow the displaced persons to return to the north violated not only the right to respect for their homes but also the right to respect for their family life. In this latter connection, the applicant Government observed that the impugned policy resulted in the separation of families. 140. In a further submission, the applicant Government requested the Court to find that the facts also disclosed a policy of deliberate destruction and manipulation of the human, cultural and natural environment and conditions of life in northern Cyprus. The applicant Government contended that this policy was based on the implantation of massive numbers of settlers from Turkey with the intention and the consequence of eliminating Greek presence and culture in northern Cyprus. In the view of the applicant Government, the notions of ‘home’ and ‘private life’ were broad enough to subsume the concept of sustaining existing cultural relationships within a subsisting cultural environment. Having regard to the destructive changes being wrought to that environment by the respondent State, it could only be concluded that the rights of the displaced persons to respect for their private life and home were being violated in this sense also. 141. The Commission observed in the first place that the issue of whether the persons concerned by the impugned measures could have been expected to use local remedies to seek redress for their grievances did not have to be examined. In the Commission’s opinion, the refusal of the ‘TRNC’ authorities to allow the displaced persons to return to their homes reflected an acknowledged official policy and, accordingly, an administrative practice. In these circumstances there was no Convention requirement to exhaust domestic remedies. 142. As to the merits of the complaints concerning the plight of the displaced persons, the Commission found, with reference to its conclusions in its 1976 and 1983 reports and the findings of fact in the instant case (see paragraphs 30–33 above), that these persons, without exception, continued to be prevented from returning to or even visiting their previous homes in northern Cyprus. In the Commission’s opinion, the facts disclosed a continuing violation of Article 8 in this respect, irrespective of the respondent Government’s appeal to the public-safety considerations set out in the second paragraph of Article 8. As to the respondent Government’s view that the claim of Greek-Cypriot displaced persons to return to the north and to settle in their homes had to be solved in the overall context of the inter-communal talks, the Commission considered that these negotiations, which were still very far from reaching any tangible result on the precise matter at hand, 444

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143.

144.

145.

146.

147.

148.

could not be invoked to justify the continuing maintenance of measures contrary to the Convention. Having regard to its Article 8 finding as well as to its conclusions on the applicant Government’s complaint under Article 1 of Protocol No. 1 (see paragraph 183 below), the Commission considered that it was not necessary to examine the applicant Government’s further allegations concerning the manipulation of the demographic and cultural environment of the displaced persons’ homes. The Court notes that in the proceedings before the Commission the respondent Government did not dispute the applicant Government’s assertion that it was not possible for displaced Greek Cypriots to return to their homes in the north. It was their contention that this situation would remain unchanged pending agreement on an overall political solution to the Cypriot question. In these circumstances the Court, like the Commission, considers that the issue of whether the aggrieved persons could have been expected to avail themselves of domestic remedies in the ‘TRNC’ does not arise. The Court observes that the official policy of the ‘TRNC’ authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south. Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them. The Court further notes that the situation impugned by the applicant Government has obtained since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in ‘legislation’ and is enforced as a matter of policy in furtherance of a bi-zonal arrangement designed, it is claimed, to minimise the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General (see paragraph 16 above). The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 § 2 of the Convention (see paragraph 173 above); secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus. 445

Part II: Cyprus–Europe Relations (1983–2006) 149. As to the applicant Government’s further allegation concerning the alleged manipulation of the demographic and cultural environment of the displaced persons’ homes, the Court, like the Commission, considers that it is not necessary to examine this complaint in view of its above finding of a continuing violation of Article 8 of the Convention. 150. Furthermore, the Court considers it appropriate to examine the applicant Government’s submissions on the issue of family separation (see paragraph 166 above) in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots. 2. Article 1 of Protocol No. 1 151. The applicant Government maintained that the respondent State’s continuing refusal to permit the return of the displaced persons to northern Cyprus not only prevented them from having access to their property there but also prevented them from using, selling, bequeathing, mortgaging, developing and enjoying it. In their submission, there were continuing violations of all the component aspects of the right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1, which states: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ 152. The applicant Government contended that the respondent State had adopted a systematic and continuing policy of interference with the immovable property of the displaced persons. They stated, inter alia, that the properties in question, of which the displaced persons were unlawfully dispossessed following their eviction from the north, were transferred into Turkish possession. Steps were then taken to ‘legalise’ the illegal appropriation of the properties and their allocation to ‘State’ bodies, Turkish Cypriots and settlers from the Turkish mainland. This was effected by means such as the assignment of ‘title deeds’ to their new possessors. No compensation had ever been awarded to the victims of these interferences. Furthermore, specific measures had been taken to develop and exploit commercially land belonging to displaced persons, Church-owned land had been transferred to the Muslim religious trust, and agricultural produce from Greek-Cypriot land was now being exported accompanied by Turkish certificates. 446

European Court of Human Rights 153. In the applicant Government’s submission, the continuing violation of property rights clearly engaged the responsibility of the respondent State under the Convention in view of the conclusions reached by the Court in its Loizidou judgment (merits). Quite apart from that consideration, the applicant Government pointed out that, in so far as the respondent State sought to justify the interferences with the displaced persons’ property rights by invoking the derogation contained in Article 1 of Protocol No. 1, the ‘legal’ measures relied on had necessarily to be considered invalid since they emanated from an illegal secessionist entity and could not for that reason be considered to comply with the qualitative requirements inherent in the notion of ‘provided for by law’. 154. The Commission observed that the applicant Government’s complaints were essentially directed at the ‘legislation’ and the acknowledged administrative practice of the ‘TRNC’ authorities. On that account, the persons aggrieved were not required to take any domestic remedies, it being noted by the Commission that, in any event, it did not appear that any remedies were available to displaced Greek Cypriots deprived of their property in northern Cyprus. 155. As to the merits, the Commission considered that the nature of the alleged interferences with the property rights of displaced Greek Cypriots was in essence the same as the interference of which Mrs Loizidou had complained in her application. Although that application concerned one particular instance of the general administrative practice to which the complaints in the present case relate, the Court’s reasoning at paragraphs 63 and 64 of its Loizidou judgment (merits) (pp. 2237–38) must also apply to the administrative practice as such. 156. The Commission, essentially for the reasons set out by the Court in the above-mentioned judgment, concluded that during the period under consideration there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. 157. The Court agrees with the Commission’s analysis. It observes that the Commission found it established on the evidence that at least since June 1989 the ‘TRNC’ authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus (see paragraph 32 above). This purported deprivation of the property at issue was embodied in a constitutional provision, ‘Article 159 of the TRNC Constitution’, and given practical effect in ‘Law no. 52/1995’. It would appear that the legality of the interference with the displaced persons’ property is unassailable before the ‘TRNC’ courts. Accordingly, there is no requirement for the persons concerned to use domestic remedies to secure redress for their complaints. 447

Part II: Cyprus–Europe Relations (1983–2006) 158. The Court would further observe that the essence of the applicant Government’s complaints is not that there has been a formal and unlawful expropriation of the property of the displaced persons but that these persons, because of the continuing denial of access to their property, have lost all control over, as well as possibilities to enjoy, their land. As the Court has noted previously (see paragraphs 172–73 above), the physical exclusion of Greek-Cypriot persons from the territory of northern Cyprus is enforced as a matter of ‘TRNC’ policy or practice. The exhaustion requirement does not accordingly apply in these circumstances. 159. The Court recalls its finding in the Loizidou judgment (merits) that that particular applicant could not be deemed to have lost title to her property by operation of ‘Article 159 of the TRNC Constitution’, a provision which it held to be invalid for the purposes of the Convention (p. 2231, § 44). This conclusion is unaffected by the operation of ‘Law no. 52/1995’. It adds that, although the latter was not invoked before the Court in the Loizidou case, it cannot be attributed any more legal validity than its parent ‘Article 159’ which it purports to implement. 160. The Court is persuaded that both its reasoning and its conclusion in the Loizidou judgment (merits) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the ‘TRNC’ authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1. It further notes that, as regards the purported expropriation, no compensation has been paid to the displaced persons in respect of the interferences which they have suffered and continue to suffer in respect of their property rights. 161. The Court notes that the respondent Government, in the proceedings before the Commission, sought to justify the interference with reference to the inter-communal talks and to the need to rehouse displaced Turkish-Cypriot refugees. However, similar pleas were advanced by the respondent Government in the Loizidou case and were rejected in the judgment on the merits (pp. 2237–38, § 64). The Court sees no reason in the instant case to reconsider those justifications. 162. For the above reasons the Court concludes that there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. 3. Article 13 of the Convention 163. The applicant Government asserted that the manifest failure of the res448

European Court of Human Rights pondent State to provide an effective or indeed any remedy to displaced persons in respect of the violations of Article 8 of the Convention and Article 1 of Protocol No. 1 was in clear breach of Article 13 of the Convention, which provides: ‘Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ 164. The applicant Government approved in the main the reasoning which led the Commission to find a breach of Article 13. 165. The Commission referred to its finding that the displaced persons’ rights under Article 8 of the Convention and Article 1 of Protocol No. 1 were violated as a matter of administrative practice. In so far as these practices were embodied in ‘legislation’ of the ‘TRNC’, the Commission noted that no provision was made to allow Greek Cypriots to contest their physical exclusion from the territory of northern Cyprus. On that account the Commission found that displaced persons had no remedies to contest interferences with their rights under these Articles and that there was a violation of Article 13 in consequence. 166. The Court notes that in the proceedings before the Commission the respondent Government pleaded that, pending the elaboration of an agreed political solution to the overall Cyprus problem, there could be no question of a right of displaced persons either to return to the homes and properties which they had left in northern Cyprus or to lay claim to any of their immovable property vested in the ‘TRNC’ authorities by virtue of ‘Article 159 of the TRNC Constitution’ and allocated to Turkish Cypriots with full title deeds in accordance with implementing ‘Law no. 52/1995’. The respondent Government did not contend before the Commission that displaced persons could avail themselves of local remedies to contest this policy of interference with their rights. Indeed, the Court considers that it would be at variance with the declared policy to provide for any challenge to its application. The Court further recalls in this connection that, as regards the violations alleged under Article 8 of the Convention and Article 1 of Protocol No. 1, it concluded that no issue arose in respect of the exhaustion requirement. It refers to the reasons supporting those conclusions (see paragraphs 171–75 and 184–89 above). 167. For these reasons, the Court, like the Commission, concludes that there has been a violation of Article 13 of the Convention by reason of the respondent State’s failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1. 449

Part II: Cyprus–Europe Relations (1983–2006) 4. Article 14 of the Convention taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 168. The applicant Government stated that the administrative practices, ‘legislation’ and ‘constitutional provisions’ at issue violated not only the rights guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1 but, being exclusively directed against Greek Cypriots not living in northern Cyprus, also Article 14 of the Convention. Article 14 of the Convention provides: ‘The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ 169. Elaborating on their submission, the applicant Government maintained that the aim of the respondent State was to discriminate against Greeks and Greek Cypriots since only these classes of persons were disentitled to acquire immovable property in the ‘TRNC’. Other ‘aliens’ such as British retired persons were not prevented from acquiring immovable property in the ‘TRNC’, inter alia property which had been ‘abandoned’ by GreekCypriot displaced persons. Furthermore, Turks from Turkey not resident in the ‘TRNC’ were not treated as having abandoned their property and were permitted to acquire new property holdings or homes. 170. The applicant Government further submitted that, as a matter of practice, the respondent State failed, on a discriminatory basis, to provide remedies for Greek Cypriots and Greeks in respect of their property rights. In their submission, there was a breach of Article 14 of the Convention in conjunction with Article 13. 171. The Commission concluded that the interferences with the rights under Article 8 of the Convention and Article 1 of Protocol No. I concerned exclusively Greek Cypriots not residing in northern Cyprus and were imposed on them for the very reason that they belonged to this class of person. There was accordingly a breach of Article 14 read together with Article 8 of the Convention and Article 1 of Protocol No. 1. The Commission did not pronounce on the applicant Government’s complaint under Article 13 taken together with Article 14. 172. The Court considers that, in the circumstances of the present case, the applicant Government’s complaints under this heading amount in effect to the same complaints, albeit seen from a different angle, as those which the Court has already considered in relation to Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. It has found that those Articles have been violated. In considers that it is not necessary to examine whether in this case there has been a violation of Article 14 taken in 450

European Court of Human Rights conjunction with those Articles by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for their homes, to the peaceful enjoyment of their possessions and to an effective remedy. 5. Article 3 of the Convention 173. The applicant Government claimed that the treatment to which the displaced persons were subjected amounted to an infringement of Article 3 of the Convention, which provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ 174. The applicant Government pleaded that the Court should find a violation of Article 3 since, in their view, treatment especially singling out categories of persons on racial and ethnic grounds, subjecting them to severe hardship, denying them or interfering with their Convention rights, and doing so specifically and publicly, amounted to conduct which was an affront to human dignity to the point of being inhuman treatment. 175. The Commission considered that it was unnecessary to examine whether the discrimination at issue also constituted inhuman or degrading treatment within the meaning of Article 3, having regard to its finding under Article 14. 176. Bearing in mind its own conclusion on the applicant Government’s complaints under Article 14 of the Convention (see paragraphs 195 and 199 above) as well as its finding of a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, the Court, for its part, does not consider it necessary to examine whether the facts alleged also give rise to a breach of Article 3 of the Convention. 6. Articles 17 and 18 of the Convention 177. The applicant Government submitted that the facts of the case disclosed a violation of Articles 17 and 18 of the Convention, which provide: Article 17 ‘Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’

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Part II: Cyprus–Europe Relations (1983–2006) Article 18 ‘The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ 178. The applicant Government maintained that Article 17 had been violated since the respondent State limited the rights and freedoms of persons, mainly Greek Cypriots, to a greater extent than was provided for in the Convention. They further submitted that the respondent State applied restrictions to the Convention rights for a purpose other than the one for which they had been prescribed, in violation of Article 18 of the Convention. 179. The Court considers that it is not necessary to examine separately these complaints, having regard to the conclusions which it has reached on the applicant Government’s complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. V. ALLEGED VIOLATIONS ARISING OUT OF THE LIVING CONDITIONS OF GREEK CYPRIOTS IN NORTHERN CYPRUS 180. The applicant Government asserted that the living conditions to which the Greek Cypriots who had remained in the north were subjected gave rise to substantial violations of the Convention. They stressed that these violations were committed as a matter of practice and were directed against a depleted and now largely elderly population living in the Karpas area of northern Cyprus in furtherance of a policy of ethnic cleansing, the success of which could be measured by the fact that from some 20,000 Greek Cypriots living in the Karpas in 1974 only 429 currently remained. Maronites, of whom there were currently 177 still living in northern Cyprus, also laboured under similar, if less severe, restrictions. 181. The applicant Government invoked Articles 2, 3, 5, 6, 8, 9, 10, 11, 13, 14 of the Convention and Articles 1 and 2 of Protocol No. 1. A. As to the facts established by the Commission 182. By way of a general submission the applicant Government maintained that the Commission, as regards certain of their complaints, erroneously concluded against the weight of the evidence that there was no violation of the Convention. In the applicant Government’s submission, the Commission’s findings on matters such as restrictions on the importation of books other than school-books, interference with correspondence and denial of access to medical services were not only at variance with the written and oral evidence of witnesses but also with the clear findings contained in the ‘Karpas Brief’ (see paragraph 36 above) and the reviews 452

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183.

184.

185.

186.

of the action taken by the ‘TRNC’ authorities to give effect to the proposals for remedying the suffering which resulted for the GreekCypriot and Maronite populations from administrative practices of violating their Convention rights. The applicant Government further claimed that witnesses, whose number was regrettably restricted, only had a limited time to recount their experiences to the Commission’s delegates. Furthermore, the applicant Government’s lawyers were only left with negligible time in which to draw out all the relevant facts following the witnesses’ statements. The applicant Government insisted that the Court have regard to these and other shortcomings in the taking of evidence when reviewing the Commission’s findings. They further submitted that, regarding the plight of the Maronites living in northern Cyprus, the Court should procure and examine the Humanitarian Review drawn up on this community. They observed in this connection that the United Nations SecretaryGeneral offered to release the Review in the proceedings before the Commission. However, the objection of the respondent Government prevented its being included in the case file. The Court recalls that the Commission established the facts with reference, inter alia, to the oral evidence given by witnesses proposed by both sides. It further recalls that it rejected the applicant Government’s criticism of the manner in which the delegates heard the evidence and reaffirms that the hearing of witnesses was organised in a way which respected the principle of procedural equality between both parties (see paragraphs 110–11 above). It is to be noted in addition that, with a view to its establishment of the facts, the Commission made extensive use of documentary materials including the ‘Karpas Brief’ on the living conditions of the enclaved Greek-Cypriot population in northern Cyprus and the UN Secretary-General’s progress reports on the proposals for remedial action formulated in the Brief. The Court observes that the applicant Government accept much of the Commission’s findings of fact. Their criticism is directed at certain conclusions which the Commission drew from those facts. For its part, and having regard to the wide-ranging and thorough analysis of the evidence conducted by the Commission, the Court does not consider that there are any exceptional circumstances which would lead it to depart from the facts as established by the Commission. It will, on the other hand, scrutinise carefully whether the facts bear out all of the applicant Government’s complaints. It reiterates that it will do so using the ‘beyond reasonable doubt’ standard of proof including with respect to the alleged existence of an administrative practice of violating the Convention rights relied on (see paragraphs 114–15 above). As to the applicant Government’s request that the Humanitarian Review dealing with the living conditions of the Maronite community in north453

Part II: Cyprus–Europe Relations (1983–2006) ern Cyprus be obtained, the Court observes that the respondent Government have not signalled that they have lifted their objection to the release of the document. It observes that, in any event, major aspects of the Review have been made public and have been included in the case file. 187. The Court notes that the Commission, in its examination of the merits of the applicant Government’s complaints, made an overall assessment of the living conditions of Greek Cypriots living in northern Cyprus from the standpoint of Articles 3, 8 and 14 of the Convention. At the same time, the Commission examined the merits of the complaints about the living conditions under the relevant Convention Article (Articles 2, 5, 6, 9, 10 and 11 of the Convention and Articles 1 and 2 of Protocol No. 1), while addressing in the framework of its global assessment the specific complaints raised by the applicant Government under Article 8 concerning interferences with the right of the Karpas Greek Cypriots to respect for their private and family life, home and correspondence. Having regard to the fact that the applicant Government’s arguments on the latter aspects of Article 8 are interwoven with their broader submissions on the violation of that provision, the Court considers that it is appropriate to discuss those arguments in the context of the living conditions of the Karpas Greek Cypriots seen from the angle of Article 8. 188. The Court will accordingly follow the Commission’s approach in this regard. B. As to the merits of the applicant Government’s complaints 1. Article 2 of the Convention 189. The applicant Government maintained that the restrictions on the ability of the enclaved Greek Cypriots and Maronites to receive medical treatment and the failure to provide or to permit receipt of adequate medical services gave rise to a violation of Article 2 of the Convention. 190. In their submission, the respondent State must be considered, as a matter of administrative practice, to have failed to protect the right to life of these communities, having regard to the absence in northern Cyprus of adequate emergency and specialist services and geriatric care. In support of their submission, the applicant Government observed that aged Greek Cypriots were compelled to transfer to the south to obtain appropriate care and attention. 191. The Commission found that there had been no violation of Article 2 by virtue of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus. It considered in this respect that, although there may have been shortcomings in individual cases, in general access to medical services, including hospitals in the south, was available to them. In view of this conclusion the Commission did not consider it necessary to examine whether, in relation to this complaint, any domestic remedies which might have been available in the ‘TRNC’ had been exhausted. 454

European Court of Human Rights 192. The Court observes that an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally. It notes in this connection that Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the LCB v. the United Kingdom judgment of 9 June 1998, Reports 1998–III, p. 1403, § 36). It notes, however, that the Commission was unable to establish on the evidence that the ‘TRNC’ authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south. It observes that during the period under consideration medical visits were indeed hampered on account of restrictions imposed by the ‘TRNC’ authorities on the movement of the populations concerned and that in certain cases delays did occur. However, it has not been established that the lives of any patients were put in danger on account of delay in individual cases. It is also to be observed that neither the Greek-Cypriot nor Maronite populations were prevented from availing themselves of medical services including hospitals in the north. The applicant Government are critical of the level of health care available in the north. However, the Court does not consider it necessary to examine in this case the extent to which Article 2 of the Convention may impose an obligation on a Contracting State to make available a certain standard of health care. 193. The Court further observes that the difficulties which the Greek-Cypriot and Maronite communities experience in the area of health care under consideration essentially stem from the controls imposed on their freedom of movement. Those controls result from an administrative practice which is not amenable to challenge in the ‘TRNC’ courts (see paragraph 41 above). On that account, the Court considers that the issue of non-exhaustion need not be examined. 194. The Court concludes that no violation of Article 2 of the Convention has been established by virtue of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus. 195. The Court will revert to the applicant Government’s complaint in respect of the alleged interference with access to medical facilities in the context of the overall assessment of compliance with Article 8 of the Convention (see paragraphs 281 et seq. below). 2. Article 5 of the Convention 196. The applicant Government maintained that the evidence clearly established that the personal security of the enclaved Greek Cypriots had been 455

Part II: Cyprus–Europe Relations (1983–2006) violated as a matter of practice. The applicant Government relied on Article 5 of the Convention in this respect, the relevant part of which reads: ‘1. Everyone has the right to liberty and security of person. …’ 197. In the applicant Government’s submission, the Commission was incorrect in its conclusion that this complaint was not borne out by the evidence. The applicant Government asserted that the written and oral testimony of witnesses clearly demonstrated the vulnerability and fear of the enclaved population and the impunity with which those responsible for crimes against the person and property could act. As to the latter point, the applicant Government observed that, although notified of complaints, the police failed to take action and without identification of assailants and suspects civil action, even if remedies were available, was impossible. They stressed that account had to be taken of the fact that the victims of these acts of criminality were aged and that the evidence given by certain witnesses to the Commission’s delegates had to be seen against the background of their fear of retaliation. 198. The Commission noted that there were no cases of actual detention of enclaved Greek Cypriots during the period under consideration; nor did it find that the allegations of threats to personal security had been substantiated. In these circumstances, no issue as to the exhaustion of domestic remedies fell to be considered. It concluded that there had been no violation of Article 5. 199. The Court notes that the applicant Government have not claimed that any members of the enclaved Greek-Cypriot population were actually detained during the period under consideration. Their complaint relates to the vulnerability of what is an aged and dwindling population to the threat of aggression and criminality and its overall sense of insecurity. However, the Court considers that these are matters which fall outside the scope of Article 5 of the Convention and are more appropriately addressed in the context of its overall assessment of the living conditions of the Karpas Greek Cypriots seen from the angle of the requirements of Article 8 (see paragraphs 281 et seq. below). 200. For the above reason, the Court concludes that there has been no violation of Article 5 of the Convention. 3. Article 6 of the Convention 201. The applicant Government, referring to their earlier arguments on the issue of domestic remedies raised in the context of the preliminary issues (see paragraphs 83–85 above), claimed that Greek Cypriots in northern Cyprus were denied the right to have their civil rights and obligations determined by independent and impartial courts established by law. They 456

European Court of Human Rights requested the Court to find a violation of Article 6 of the Convention, which provides as relevant: ‘1. In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.’ 202. The applicant Government criticised the Commission’s failure to have regard to the essential illegality of the regime under which the ‘TRNC’ courts function. They submitted in this connection that it could not be contended that those courts were ‘established by law’ within the meaning of Article 6 as interpreted in the Court’s case-law. Regrettably, the Commission erroneously considered that the ‘TRNC’ courts had a sufficient legal basis within the ‘constitutional and legal system of the TRNC’. Furthermore, the Commission overlooked clear evidence which supported the applicant Government’s view that the enclaved Greek-Cypriot population had no faith in the independence and impartiality of the court system and that any rulings which might be given in favour of litigants were rendered meaningless on account of intimidation by Turkish settlers. To this were to be added the facts, firstly, that there was no system of legal aid which could facilitate the bringing of proceedings and, secondly, the authorities themselves did nothing to prevent intimidation by settlers, with the result that court decisions remained unenforceable. Furthermore, due account had also to be taken of the fact that the possibility of taking litigation was frustrated on account of the restrictions imposed on the movement of the enclaved Greek Cypriots and hence on their access to courts. In the applicant Government’s submission, these severe impediments to justice were confirmed by the findings in the ‘Karpas Brief’. 203. The Commission found on the facts that Greek Cypriots living in northern Cyprus were not prevented from bringing civil actions before the ‘TRNC’ courts. In the Commission’s conclusion, the applicant Government had not made out their claim that there was a practice in the ‘TRNC’ of denying access to court. 204. As to the applicant Government’s claim that ‘TRNC’ courts failed to satisfy the criteria laid down in Article 6, the Commission noted, firstly, that there was nothing in the institutional framework of the ‘TRNC’ legal system which was likely to cast doubt either on the independence and impartiality of the civil courts or the subjective and objective impartiality of judges, and, secondly, those courts functioned on the basis of the domestic law of the ‘TRNC’ notwithstanding the unlawfulness under international law of the TRNC’s claim to statehood. The Commission found support for this view in the Advisory Opinion of the International Court of Justice in the Namibia case (see paragraph 86 above). Moreover, 457

Part II: Cyprus–Europe Relations (1983–2006) in the Commission’s opinion due weight had to be given to the fact that the civil courts operating in the ‘TRNC’ were in substance based on the Anglo-Saxon tradition and were not essentially different from the courts operating before the events of 1974 and from those which existed in the southern part of Cyprus. 205. The Commission accordingly concluded that, during the period under consideration, there had been no violation of Article 6 of the Convention in respect of Greek Cypriots living in northern Cyprus. 206. The Court notes that the applicant Government have confined their submissions under this head to the civil limb of Article 6 of the Convention. It recalls in this connection that the first paragraph of Article 6 embodies the right of access to a court or tribunal in respect of disputes over civil rights or obligations which can be said, at least on arguable grounds, to be recognised under domestic law; it does not of itself guarantee any particular content for such rights and obligations in the substantive law of the Contracting State (see, inter alia, the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A, no. 102, p. 70, § 192). Furthermore, a court or tribunal is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements – independence, in particular of the executive; impartiality; duration of its members’ terms of office; guarantees afforded by its procedure – several of which appear in the text of Article 6 § 1 (see, among other authorities, the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 29, § 64). 207. The Court observes that it is the applicant Government’s contention that the enclaved Greek-Cypriot population is prevented, as a matter of administrative practice, from asserting civil claims before the ‘TRNC’ courts. However, this assertion is at variance with the testimony of witnesses heard by the delegates, including witnesses proposed by the applicant Government. It is also contradicted by the written evidence adduced before the Commission. It is clear that Greek Cypriots living in the north have on occasion successfully taken court actions in defence of their property rights (see paragraph 39 above), and they are not barred for reasons of race, language or ethnic origin from using the local courts. The Commission accepted this on the facts and the Court does not dispute the Commission’s conclusion. For the Court, the applicant Government are required to show that the courts have been tried and found wanting. Absent this, it is being asked to speculate on the merits of their claim. Admittedly, the number of actions brought by members of the enclaved population is limited. However, that of itself does not corroborate the applicant Government’s claim, especially if regard is had to the fact that the population is aged and small in numbers and, for reasons of 458

European Court of Human Rights allegiance, perhaps psychologically ill-disposed to invoking the jurisdiction of courts set up by the ‘TRNC’. 208. The Court also considers that this conclusion is not affected by the fact that certain matters which may weigh heavily on the daily lives of the enclaved Greek Cypriots are not amenable to challenge in the ‘TRNC’ courts, for example restrictions on their freedom of movement or their right to bequeath property to family members in the south (see paragraphs 40–41 above). However, in the Court’s opinion those measures, whether embodied in policy or ‘legislation’, are to be addressed from the standpoint of the effectiveness of remedies within the meaning of Article 13 of the Convention and their compatibility with other relevant substantive provisions of the Convention and its Protocols. The existence of such measures does not improve the applicant Government’s case concerning the alleged administrative practice of violating Article 6. It recalls in this connection that the applicability of Article 6 is premised on the existence of an arguable cause of action in domestic law (see the abovementioned Lithgow and Others judgment, p. 70, § 192, and the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, pp. 16–17, § 36). 209. As to the applicant Government’s challenge to the very legality of the ‘TRNC’ court system, the Court observes that they advanced similar arguments in the context of the preliminary issue concerning the requirement to exhaust domestic remedies in respect of the complaints covered by the instant application (see paragraphs 83–85 above). The Court concluded that, notwithstanding the illegality of the ‘TRNC’ under international law, it cannot be excluded that applicants may be required to take their grievances before, inter alia, the local courts with a view to seeking redress. It further pointed out in that connection that its primary concern in this respect was to ensure, from the standpoint of the Convention system, that dispute-resolution mechanisms which offer individuals the opportunity of access to justice for the purpose of remedying wrongs or asserting claims should be used. 210. The Court observes from the evidence submitted to the Commission (see paragraph 39 above) that there is a functioning court system in the ‘TRNC’ for the settlement of disputes relating to civil rights and obligations defined in ‘domestic law’ and which is available to the GreekCypriot population. As the Commission observed, the court system in its functioning and procedures reflects the judicial and common-law tradition of Cyprus (see paragraph 231 above). In its opinion, having regard to the fact that it is the ‘TRNC domestic law’ which defines the substance of those rights and obligations for the benefit of the population as a whole it must follow that the domestic courts, set up by the ‘law’ of the ‘TRNC’, are the fora for their enforcement. For the Court, and for the purposes of adjudicating on ‘civil rights and obligations’ the local courts 459

Part II: Cyprus–Europe Relations (1983–2006) can be considered to be ‘established by law’ with reference to the ‘constitutional and legal basis’ on which they operate. In the Court’s opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body (see paragraph 96 above). It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights. 211. The Court would add that its conclusion on this matter in no way amounts to a recognition, implied or otherwise, of the TRNC’s claim to statehood (see paragraphs 61, 90 and 92 above). 212. The Court notes that the applicant Government contest the independence and impartiality of the ‘TRNC’ court system from the perspective of the local Greek-Cypriot population. However, the Commission rejected this claim on the facts (see paragraph 231 above). Having regard to its own assessment of the evidence, the Court accepts that conclusion. 213. For the above reasons, the Court concludes that no violation of Article 6 of the Convention has been established in respect of Greek Cypriots living in northern Cyprus by reason of an alleged practice of denying them a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations. 4. Article 9 of the Convention 214. The applicant Government alleged that the facts disclosed an interference with the enclaved Greek Cypriots’ right to manifest their religion, in breach of Article 9 of the Convention which states: ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ 215. The applicant Government contended that the interference with the concerned population’s right under Article 9 was reflected in the ‘TRNC’ policy of limiting its freedom of movement and thereby restricting access to places of worship. The applicant Government also condemned the failure of the ‘TRNC’ to appoint further priests to the area. They endorsed the Commission’s findings on the facts and its conclusion that there had been a breach of Article 9. They added that a similar breach should be 460

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216.

217.

218.

219. 220.

found in respect of the Maronite population living in northern Cyprus on account of the fact that that population also had to contend with restrictions on its right to visit and tend to its holy places in the northern part of Cyprus. The Commission observed that the existence of a number of measures limited the religious life of the enclaved Greek-Cypriot population. It noted in this respect that, at least until recently, restrictions were placed on their access to the Apostolos Andreas Monastery as well as on their ability to travel outside their villages to attend religious ceremonies. In addition, the ‘TRNC’ authorities had not approved the appointment of further priests for the area, there being only one priest for the whole of the Karpas region. For the Commission, these restrictions prevented the organisation of Greek Orthodox religious ceremonies in a normal and regular manner and amounted to a breach of Article 9 of the Convention. In the Commission’s view, there existed no effective remedies in respect of the measures complained of. The Commission accordingly concluded that during the period under consideration there had been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus. The Court accepts the facts as found by the Commission, which are not disputed by the applicant Government. It has not been contended by the applicant Government that the ‘TRNC’ authorities have interfered as such with the right of the Greek-Cypriot population to manifest their religion either alone or in the company of others. Indeed there is no evidence of such interference. However, the restrictions placed on the freedom of movement of that population during the period under consideration considerably curtailed their ability to observe their religious beliefs, in particular their access to places of worship outside their villages and their participation in other aspects of religious life. The Court concludes that there has been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus. The Court notes that the applicant Government have requested it to make a similar finding in respect of the Maronite community living in northern Cyprus. However, it considers that the evidence before it is insufficient to prove beyond reasonable doubt that members of this community were prejudiced to the same extent as the Greek-Cypriot population in the north in the exercise of their right to freedom of religion. It finds therefore that no violation of Article 9 has been established in respect of the Maronite population living in northern Cyprus.

5. Article 10 of the Convention 221. The applicant Government asserted that the ‘TRNC’ authorities engaged in excessive censorship of school-books, restricted the importation of 461

Part II: Cyprus–Europe Relations (1983–2006) Greek-language newspapers and books and prevented the circulation of any newspapers or books whose content they disapproved of. In their submission, these acts violated as a matter of administrative practice the right of the enclaved Greek Cypriots to receive and impart information and ideas guaranteed by Article 10 of the Convention, which provides: ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’ 222. The applicant Government approved the Commission’s finding that school-books destined for Greek-Cypriot children in the north were subject to excessive measures of censorship. However, in their submission the Commission had failed to give due regard to the ample evidence confirming that Greek-language books and newspapers were censored and confiscated by the ‘TRNC’ authorities. The applicant Government stated that it would be stretching credulity to accept that these authorities censored school-books, however innocent their content, but permitted the unrestricted importation of other categories of books. The applicant Government relied on the oral affirmation of certain witnesses heard by the Commission’s delegates that books, like newspapers, had to be surreptitiously taken into northern Cyprus for fear of confiscation. 223. The Commission found a violation of Article 10 in so far as the TurkishCypriot authorities had, during the period under consideration, censored or rejected the distribution of a considerable number of school-books on the ground that their content was capable of fostering hostility between the ethnic communities in northern Cyprus. The Commission noted that the books which had been censored or rejected concerned subjects such as Greek language, English, history, geography, religion, civics, science, mathematics and music. Even having regard to the possibility that such books contained materials indicating the applicant Government’s view of 462

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224.

225.

226.

227.

the history and culture of Cyprus, the impugned action failed to comply with the requirements of paragraph 2 of Article 10. In the Commission’s view there were no remedies which would have allowed parents or teachers to contest the action taken. On the other hand, the Commission did not find it established on the evidence that restrictions were imposed on the importation of newspapers or Greek-Cypriot or Greek language books other than schoolbooks, or on the reception of electronic media. As to the absence of a newspaper distribution system in the Karpas area, the Commission observed that it had not been informed of any administrative measures preventing the establishment of such a system. The Court recalls that it has accepted the facts as established by the Commission (see paragraph 212 above). On that understanding it confirms the Commission’s finding that there has been an interference with Article 10 on account of the practice adopted by the ‘TRNC’ authorities of screening the contents of school-books before their distribution. It observes in this regard that, although the vetting procedure was designed to identify material which might pose a risk to inter-communal relations and was carried out in the context of confidence-building measures recommended by UNFICYP (see paragraph 44 above), the reality during the period under consideration was that a large number of school-books, no matter how innocuous their content, were unilaterally censored or rejected by the authorities. It is to be further noted that in the proceedings before the Commission the respondent Government failed to provide any justification for this form of wide-ranging censorship, which, it must be concluded, far exceeded the limits of confidence-building methods and amounted to a denial of the right to freedom of information. It does not appear that any remedies could have been taken to challenge the decisions of the ‘TRNC’ authorities in this regard. The Court notes that the applicant Government consider that the Commission erred in its assessment of the evidence in respect of other categories of Greek-language books as well as newspapers. It has given careful consideration to the matters relied on by the applicant Government. However, the Court does not find that the evidence of individual cases of confiscation at the Ledra Palace check-point adduced before the Commission and highlighted by the applicant Government in their memorial and at the public hearing substantiate their allegations with reference to the ‘beyond reasonable doubt’ standard of proof. The Court finds therefore that there has been a violation of Article 10 of the Convention in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject, during the period under consideration, to excessive measures of censorship. 463

Part II: Cyprus–Europe Relations (1983–2006) 6. Article 11 of the Convention 228. The applicant Government asserted that their complaint under this head related to their claim that the Karpas Greek Cypriots were victims of interferences with their right to freedom of assembly, in breach of Article 11 of the Convention, which provides: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. 229. The applicant Government contended that the Commission had failed to give due weight to the evidence of the respondent State’s longstanding policy of impeding the enclaved population’s right to take part in organised or ad hoc gatherings. They maintained that the Commission erroneously found that impediments to bi-communal meetings only occurred as from the second half of 1996 and were thus outside the scope of the case. The applicant Government argued that these impediments had in fact been continuing since 1974 on account of the respondent State’s general and restrictive policy in the area of freedom of movement. They maintained that their claim was borne out by the UN Secretary-General’s observations on the measures being implemented by the Turkish-Cypriot authorities in respect of Greek Cypriots and Maronites located in the northern part of Cyprus (UN document S/1995/1020, Annex IV, 30 November 1995). By way of an example of restrictions on the right to freedom of assembly during the period under consideration, the applicant Government observed that the Turkish-Cypriot authorities, on 13 November 1994, refused permission for a Greek singer to give a concert in the Karpas region. 230. The applicant Government further complained that the administrative practice at issue also resulted in a violation of Article 8, given that the Greek-Cypriot and Maronite populations were prevented from freely foregathering, meeting or assembling either outside their villages in the ‘TRNC’ or by crossing the cease-fire line to the buffer-zone, or by visiting the free area. 231. The Commission proceeded on the understanding that the applicant Government’s essential complaint under Article 11 concerned an 464

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232.

233.

234.

235.

236.

alleged violation of the right of the population concerned to freedom of association in the sense of founding or joining associations or taking part in the activities of associations with a minimum organisational structure, to the exclusion of social contacts. The Commission found on the evidence that, during the period under consideration, there was no restriction on any aspect of the right as defined. As to impediments to the participation of enclaved Greek Cypriots in bi-communal events organised by the United Nations, the Commission noted that UN documents mentioned impediments having been placed in the way of inter-communal meetings as from the second half of 1996. However, given that these events were based on distinct facts occurring after the date of the admissibility decision, any complaints based thereon could not be entertained. Having regard to its conclusion that there had been no violation of the right of Greek Cypriots living in northern Cyprus to freedom of association, the Commission considered that it was unnecessary to examine whether any available remedies had been exhausted in respect of the applicant Government’s allegations. The Court observes that the matters raised by the applicant Government are essentially issues of fact which have been carefully examined by the Commission in the context of the fact-finding procedure. It observes that on the basis of the evidence analysed the Commission found it impossible to conclude that during the period under consideration there was any interference by the ‘TRNC’ authorities with attempts by Greek Cypriots to establish their own associations or mixed associations with Turkish Cypriots, or interference with the participation of Greek Cypriots in the activities of associations (see paragraph 258 above). The Court accepts the Commission’s finding and would add that the evidence does not allow it to conclude, beyond reasonable doubt, that an administrative practice of violating the right of the enclaved Greek Cypriots to freedom of association existed during the reference period. Like the Commission, the Court also considers that its conclusion does not require it to examine whether any available domestic remedies have been exhausted in relation to these complaints. As to the applicant Government’s complaints in respect of an alleged practice of imposing restrictions on Greek Cypriots’ participation in bi-communal or inter-communal events during the period under consideration, the Court considers, having regard to the subjectmatter of the events relied on, that it is more appropriate to consider them from the standpoint of Article 8 of the Convention. It will do so in the context of its global assessment of that Article (see paragraphs 281 et seq. below). The Court concludes that no violation of Article 11 of the Convention 465

Part II: Cyprus–Europe Relations (1983–2006) has been established by reason of an alleged practice of denying Greek Cypriots living in northern Cyprus the right to freedom of association. 7. Article 1 of Protocol No. 1 237. The applicant Government complained that Greek Cypriots and Maronites living in northern Cyprus were victims of violations of their rights under Article 1 of Protocol No. 1. They contended that the authorities of the respondent State unlawfully interfered with the property of deceased Greek Cypriots and Maronites as well as with the property of such persons who decided to leave permanently the northern part. Furthermore, landowners were denied access to their agricultural land situated outside a three-mile radius of their villages. The applicant Government requested the Court to confirm the Commission’s conclusion that Article 1 of Protocol No. 1 had been violated in these respects. 238. In a further submission, the applicant Government pointed to their claim that third parties interfered with the property of the persons concerned, whether situated inside their villages or beyond the three-mile zone and that the ‘TRNC’ authorities acquiesced in or tolerated these interferences. In the applicant Government’s view, the evidence adduced before the Commission clearly demonstrated that the local police did not, as a matter of administrative practice, investigate unlawful acts of trespass, burglary and damage to property, contrary to the respondent State’s positive obligations under Article 1 of Protocol No. 1. They observed with regret that the Commission had failed to find a violation despite the existence of substantial evidence of an administrative practice. The applicant Government requested the Court to depart from the Commission’s finding on this particular complaint. 239. The Commission accepted on the evidence that there was no indication that during the period under consideration there were any instances of wrongful allocation of Greek-Cypriot property to other persons and that the property of resident Greek Cypriots was not treated as ‘abandoned property’ within the meaning of ‘Article 159 of the TRNC Constitution’ (see paragraph 184 above). It observed in this connection that the local courts had ruled in favour of a number of Greek Cypriots who claimed that their properties had been wrongfully allocated under the applicable domestic ‘rules’. However, the Commission did find it established that Greek Cypriots who decided to resettle in the south were no longer considered legal owners of the property which they left behind. Their situation was accordingly analogous to that of displaced persons (see paragraph 187 above) and, as with the latter, there were no remedies available to them to contest this state of affairs. 240. The Commission was not persuaded either that heirs living in southern Cyprus would have any realistic prospects of invoking remedies before the ‘TRNC’ courts to claim inheritance rights to the property of deceased 466

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241.

242.

243.

244.

Greek Cypriots situated in the north. In the Commission’s opinion, the respondent Government had not shown to its satisfaction that such property would not be considered ‘abandoned’ in application of the relevant ‘rules’. In any event, the very existence of these ‘rules’ and their application were, for the Commission, incompatible with the letter and spirit of Article 1 of Protocol No. 1. As to the criminal acts of third parties referred to by the applicant Government, the Commission considered that the evidence did not bear out their allegations that the ‘TRNC’ authorities had either participated in or encouraged criminal damage or trespass. It noted that a number of civil and criminal actions had been successfully brought before the courts in respect of complaints arising out of such incidents and that there was a recent increase in criminal prosecutions. The Court notes from the facts established by the Commission that, as regards ownership of property in the north, the ‘TRNC’ practice is not to make any distinction between displaced Greek-Cypriot owners and Karpas Greek-Cypriot owners who leave the ‘TRNC’ permanently, with the result that the latter’s immovable property is deemed to be ‘abandoned’ and liable to reallocation to third parties in the ‘TRNC’. For the Court, these facts disclose a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory. The Court further observes that the evidence taken in respect of this complaint also strongly suggests that the property of Greek Cypriots in the north cannot be bequeathed by them on death and that it passes to the authorities as ‘abandoned’ property. It notes that the respondent Government contended before the Commission that a court remedy could be invoked by an heir in order to assert inheritance rights to the property of a deceased Greek-Cypriot relative. The Court, like the Commission, is not persuaded that legal proceedings would hold out any prospects of success, having regard to the respondent Government’s view in the proceedings before the Commission that the property of deceased Greek Cypriots devolves on the authorities in accordance with the notion of ‘abandoned’ property. It further notes that heirs living in the south would in fact be prevented from having physical access to any property which they inherited. Accordingly, Article 1 of Protocol No. 1 has also been breached in this respect, given that the inheritance rights of persons living in southern Cyprus in connection with the property in northern Cyprus of deceased Greek-Cypriot relatives were not recognised. Concerning the applicant Government’s allegation of a lack of protection for Greek Cypriots against acts of criminal damage to their property, the 467

Part II: Cyprus–Europe Relations (1983–2006) Court considers that the evidence adduced does not establish to the required standard that there is an administrative practice on the part of the ‘TRNC’ authorities of condoning such acts or failing to investigate or prevent them. It observes that the Commission carefully studied the oral evidence of witnesses but was unable to conclude that the allegation was substantiated. Having regard to its own assessment of the evidence relied on by the applicant Government, the Court accepts that conclusion. It further observes that the ‘domestic law’ of the ‘TRNC’ provides for civil actions to be taken against trespassers and criminal complaints to be lodged against wrongdoers. The ‘TRNC’ courts have on occasion found in favour of Greek-Cypriot litigants. As noted previously, it has not been established on the evidence that there was, during the period under consideration, an administrative practice of denying individuals from the enclaved population access to a court to vindicate their civil rights (see paragraph 240 above). 245. The Court concludes accordingly that no violation of Article 1 of Protocol No. 1 has been established by reason of an alleged practice of failing to protect the property of Greek Cypriots living in northern Cyprus against interferences by private persons. 8. Article 2 of Protocol No. 1 246. The applicant Government averred that the children of Greek Cypriots living in northern Cyprus were denied secondary-education facilities and that Greek-Cypriot parents of children of secondary-school age were in consequence denied the right to ensure their children’s education in conformity with their religious and philosophical convictions. The applicant Government relied on Article 2 of Protocol No. 1, which states: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ 247. The applicant Government approved the reasons given by the Commission for finding a violation of the above provision. However, they requested the Court to rule that this provision had also been breached on account of the prevention by the respondent State of appropriate primary-school teaching until the end of 1997. Before that date, the ‘TRNC’ had not permitted the appointment of a primary-school teacher. In the applicant Government’s submission this policy interfered with the right of Greek-Cypriot children to a primary education. 248. The Commission, with reference to the principles set out by the Court in the Case relating to certain aspects of the laws on the use of 468

European Court of Human Rights languages in education in Belgium (merits) (judgment of 23 July 1968, Series A no. 6), observed that the secondary educational facilities which were formerly available to children of Greek Cypriots had been abolished by the Turkish-Cypriot authorities. Accordingly, the legitimate wish of Greek Cypriots living in northern Cyprus to have their children educated in accordance with their cultural and ethnic tradition, and in particular through the medium of the Greek language, could not be met. The Commission further considered that the total absence of secondary-school facilities for the persons concerned could not be compensated for by the authorities’ allowing pupils to attend schools in the south, having regard to the fact that restrictions attached to their return to the north (see paragraph 44 above). In the Commission’s conclusion, the practice of the Turkish-Cypriot authorities amounted to a denial of the substance of the right to education and a violation of Article 2 of Protocol No. 1. 249. As to the provision of primary-school education in the Greek language, the Commission considered that the right to education of the population concerned had not been disregarded by the Turkish-Cypriot authorities and that any problems arising out of the vacancy for teaching posts had been resolved. 250. The Court notes that children of Greek-Cypriot parents in northern Cyprus wishing to pursue a secondary education through the medium of the Greek language are obliged to transfer to schools in the south, this facility being unavailable in the ‘TRNC’ ever since the decision of the Turkish-Cypriot authorities to abolish it. Admittedly, it is open to children, on reaching the age of 12, to continue their education at a Turkish or English-language school in the north. In the strict sense, accordingly, there is no denial of the right to education, which is the primary obligation devolving on a Contracting Party under the first sentence of Article 2 of Protocol No. 1 (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, pp. 25–26 § 52). Moreover, this provision does not specify the language in which education must be conducted in order that the right to education be respected (see the above-mentioned Belgian linguistic judgment, pp. 30–31, § 3). 251. However, in the Court’s opinion, the option available to Greek-Cypriot parents to continue their children’s education in the north is unrealistic in view of the fact that the children in question have already received their primary education in a Greek-Cypriot school there. The authorities must no doubt be aware that it is the wish of Greek-Cypriot parents that the schooling of their children be completed through the medium of the Greek language. Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the ‘TRNC’ authorities to make continuing provision for it at the secondary-school level must be 469

Part II: Cyprus–Europe Relations (1983–2006) considered in effect to be a denial of the substance of the right at issue. It cannot be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots suffices to fulfil the obligation laid down in Article 2 of Protocol No. 1, having regard to the impact of that option on family life (see paragraph 277 above and paragraph 292 below). 252. The Court notes that the applicant Government raise a further complaint in respect of primary-school education and the attitude of the ‘TRNC’ authorities towards the filling of teaching posts. Like the Commission, it considers that, taken as a whole, the evidence does not disclose the existence of an administrative practice of denying the right to education at primary-school level. 253. Having regard to the above considerations, the Court concludes that there has been a violation of Article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them. C. Overall examination of the living conditions of Greek Cypriots in northern Cyprus 1. Article 8 of the Convention 254. The applicant Government asserted that the respondent State, as a matter of administrative practice, violated in various respects the right of Greek Cypriots living in northern Cyprus to respect for their private life and home. The applicant Government invoked Article 8 of the Convention. 255. The applicant Government requested the Court to confirm the Commission’s finding that Article 8 was violated, firstly, on account of the separation of families brought about by continuing restrictions on the right of Greek Cypriots to return to their homes in the north and, secondly, as a result of the effect of the entirety of these restrictions on the enclaved population. 256. In their further submissions, the applicant Government maintained that the Commission had failed to make an express finding that Article 8 had been breached by virtue of the effect which the various restrictions on freedom of movement of the enclaved Greek Cypriots had during the period under consideration on their right to respect for private life. They highlighted in this connection the restrictions which prevented the enclaved Greek Cypriots from assembling or meeting with other individuals on an informal or ad hoc basis or attending bi-communal meetings or other gatherings (see paragraphs 256–57 above). The applicant Government also contended that a further and separate breach of the right to respect for private life should be found in view of the consequences which the restrictions on movement had on the access of 470

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257.

258.

259.

260.

261.

262.

enclaved Greek Cypriots to medical treatment (see paragraphs 216–17 above). In this connection, the applicant Government observed that the requirement to obtain permission for medical treatment and the denial of visits by Greek-Cypriot doctors or Maronite doctors of their choice interfered with the right of Greek Cypriots in the north to respect for their private life. The applicant Government further contended that the evidence before the Commission clearly showed that Article 8 had been breached in the following additional respects: interference by the ‘TRNC’ authorities with the right to respect for correspondence by way of searches at the Ledra Palace crossing-point and confiscation of letters; denial by the same authorities for a lengthy period, and on a discriminatory basis, of the installation of telephones in homes of Greek Cypriots and interception of such calls as they were able to make. The applicant Government reiterated their view that the respondent State through its policy of colonisation had engaged in deliberate manipulation of the demographic and cultural environment of the ‘home’ of the Greek Cypriots (see paragraph 167 above). They requested the Court to find a breach of Article 8 on that account. The applicant Government stated in conclusion that the Court should address the Commission’s failure to deal individually with each of the above interferences and to find that they gave rise to separate breaches of Article 8. The Commission examined the applicant Government’s complaints from a global standpoint while not losing sight of the distinct aspects of that provision (see paragraph 214 above). It found on the facts that the restrictions imposed by the ‘TRNC’ authorities during the period under consideration on the freedom of movement of Greek Cypriots to and from the south had the effect of gravely interfering with the right of the enclaved Greek Cypriots to respect for family life. Furthermore, their movement within the Karpas region, including to neighbouring villages or towns, was accompanied by measures of strict and invasive police control. The Commission noted that visitors to their homes were physically accompanied by police officers who, in certain cases, stayed with the visitors inside the host’s home. In the Commission’s opinion, this administrative practice amounted to a clear interference with the right of the enclaved Greek Cypriots to respect for their private life and home. The Commission observed that no remedies were available to challenge the measures applied to the enclaved population and that they could not be justified in any manner with respect to the provisions of paragraph 2 of Article 8. In view of the above finding the Commission did not consider it necessary to address the merits of the applicant Government’s complaint 471

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263.

264.

265.

266.

267. 472

concerning the alleged effect of the respondent State’s colonisation policy on the demographic and cultural environment of the Greek Cypriots’ homes. Furthermore, the Commission did not find it established on the evidence that, during the period under consideration, there had been an administrative practice of disregarding the right of Greek Cypriots living in northern Cyprus to respect for their correspondence. The Commission noted, however, that, taken as a whole, the daily life of Greek Cypriots in northern Cyprus was characterised by a multitude of adverse circumstances, which were to a large extent the direct result of the official policy conducted by the respondent State and its subordinate administration. In the Commission’s view these adverse factors served to aggravate the breach of the enclaved Greek Cypriots’ right to respect for their private and family life and respect for their home. The Court observes in the first place that the facts as found by the Commission confirm that, during the period under consideration, the right of the enclaved Greek Cypriots to family life was seriously impeded on account of the measures imposed by the ‘TRNC’ authorities to limit family reunification. Thus, it was not disputed by the respondent Government in the proceedings before the Commission that Greek Cypriots who permanently left the northern part of Cyprus were not allowed to return even if they left a family behind (see paragraph 29 above). Although arrangements were introduced by the ‘TRNC’ authorities to facilitate to a limited extent family visits in 1998, the period under consideration for the purposes of the instant application was characterised by severe limitations on the number and duration of such visits. Furthermore, during the reference period schoolchildren from northern Cyprus attending schools in the south were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. It is also to be observed that certain restrictions applied to the visits of those students to their parents in the north (see paragraph 43 above). In the Court’s opinion, the imposition of these restrictions during the legal basis resulted in the enforced separation of families and the denial period under consideration as a matter of policy and in the absence of any to the Greek-Cypriot population in the north of the possibility of leading a normal family life. In the absence of any legal basis for these restrictions, the Court does not have to consider whether the interferences at issue can be justified with reference to the provisions of Article 8 § 2 of the Convention. For the same reason it does not have to consider either whether aggrieved individuals could have been expected to exhaust domestic remedies to challenge what in effect amounts to an administrative practice of interference with the right to respect for family life. As to the alleged interferences with the right of the enclaved Greek

European Court of Human Rights

268.

269.

270.

271.

272.

Cypriots to respect for their private life and home, the Court notes that the Commission found it established on the evidence that, during the period under consideration, this community was in effect monitored in respect of its contacts and movements (see paragraph 287 above), Greek Cypriots having to account to the authorities for even the most mundane of reasons for moving outside the confines of their villages. The Court further notes that the surveillance effected by the authorities even extended to the physical presence of State agents in the homes of Greek Cypriots on the occasion of social or other visits paid by third parties, including family members. The Court considers that such highly intrusive and invasive acts violated the right of the Greek-Cypriot population in the Karpas region to respect for their private and family life. No legal basis for these acts has been adduced, less so any justification which could attract the provisions of Article 8 § 2 of the Convention. They were carried out as a matter of practice. As such, no question as to the exhaustion of local remedies arises in the circumstances. Having regard to the above considerations, the Court concludes that there has been a violation of the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home, as guaranteed by Article 8 of the Convention. The Court further notes that the applicant Government contest the Commission’s finding that it has not been established that during the period under consideration the correspondence of the enclaved Greek Cypriots was intercepted or opened as a matter of administrative practice. Having regard to its own assessment of the evidence, the Court considers that the applicant Government’s challenge to the Commission’s conclusion cannot be sustained. It observes that the evidence does bear out that in certain cases persons at the Ledra Palace crossing-point were searched for letters. However, the evidence before it does not substantiate to the required standard the allegation that such searches were carried out as a matter of administrative practice; nor does it support the view that there was a consistent practice of tapping telephone calls made to and from the homes of Greek Cypriots. In view of the above considerations, the Court concludes that no violation of Article 8 of the Convention has been established by reason of an alleged practice of interference with the right of Greek Cypriots living in northern Cyprus to respect for their correspondence. The Court notes that the applicant Government do not dispute the Commission’s decision to examine globally the living conditions of Greek Cypriots in northern Cyprus from the standpoint of Article 8. They do, however, request the Court to isolate from that examination a number of alleged specific interferences with the right to respect for private life and to rule separately on their merits (see paragraphs 283–86 above). In the 473

Part II: Cyprus–Europe Relations (1983–2006) Court’s opinion, the matters relied on by the applicant Government in this connection are in reality bound up with their more general allegation that the respondent State pursues a policy which is intended to claim the northern part of Cyprus for Turkish Cypriots and settlers from Turkey to the exclusion of any Greek-Cypriot influence. The applicant Government maintain that this policy is manifested in the harshness of the restrictions imposed on the enclaved Greek-Cypriot population. For the Court, the specific complaints invoked by the applicant Government regarding impediments to access to medical treatment and hindrances to participation in bi- or inter-communal events (see paragraphs 216–227, 257 and 283 above) are elements which fall to be considered in the context of an overall analysis of the living conditions of the population concerned from the angle of their impact on the right of its members to respect for private and family life. 273. In this connection the Court cannot but endorse the Commission’s conclusion at paragraph 489 of its report that the restrictions which beset the daily lives of the enclaved Greek Cypriots create a feeling among them ‘of being compelled to live in a hostile environment in which it is hardly possible to lead a normal private and family life’. The Commission noted in support of this conclusion that the adverse circumstances to which the population concerned was subjected included: the absence of normal means of communication (see paragraph 45 above); the unavailability in practice of the Greek-Cypriot press (see paragraph 45 above); the insufficient number of priests (see paragraph 47 above); the difficult choice with which parents and schoolchildren were faced regarding secondary education (see paragraphs 43–44 above); the restrictions and formalities applied to freedom of movement, including, the Court would add, for the purposes of seeking medical treatment and participation in bi- or intercommunal events; the impossibility of preserving property rights upon departure or on death (see paragraph 40 above). 274. The Court, like the Commission, considers that these restrictions are factors which aggravate the violations which it has found in respect of the right of the enclaved Greek Cypriots to respect for private and family life (see paragraph 296 above). Having regard to that conclusion, the Court is of the view that it is not necessary to examine separately the applicant Government’s allegations under Article 8 concerning the implantation of Turkish settlers in northern Cyprus (see paragraph 285 above). 2. Article 3 of the Convention 275. The applicant Government alleged that, as a matter of practice, Greek Cypriots living in the Karpas area of northern Cyprus were subjected to inhuman and degrading treatment, in particular discriminatory treatment amounting to inhuman and degrading treatment. 474

European Court of Human Rights 276. They submitted that the Court should, like the Commission, find that Article 3 had been violated. The applicant Government fully endorsed the Commission’s reasoning in this respect. 277. The Commission did not accept the respondent Government’s argument that it was prevented from examining whether the totality of the measures impugned by the applicant Government, including those in respect of which it found no breach of the Convention, provided proof of the pursuit of a policy of racial discrimination amounting to a breach of Article 3 of the Convention. The Commission had particular regard in this connection to its report under former Article 31 in the East African Asians v. the United Kingdom case adopted on 14 December 1973 (Decisions and Reports 78-A, p. 62). Having regard to the fact that it found the Convention to be violated in several respects, the Commission noted that all the established interferences concerned exclusively Greek Cypriots living in northern Cyprus and were imposed on them for the very reason that they belonged to this class of persons. In the Commission’s conclusion, the treatment complained of was clearly discriminatory against them on the basis of their ‘ethnic origin, race and religion’. Regardless of recent improvements in their situation, the hardships to which the enclaved Greek Cypriots were subjected during the period under consideration still affected their daily lives and attained a level of severity which constituted an affront to their human dignity. 278. The Court recalls that in its Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), it accepted the applicants’ argument that, irrespective of the relevance of Article 14, a complaint of discriminatory treatment could give rise to a separate issue under Article 3. It concluded on the merits that the difference of treatment complained of in that case did not denote any contempt or lack of respect for the personality of the applicants and that it was not designed to, and did not, humiliate or debase them (p. 42, §§ 90–92). 279. The Court further recalls that the Commission, in its decision in the above-mentioned East African Asians case, observed, with respect to an allegation of racial discrimination, that a special importance should be attached to discrimination based on race and that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special affront to human dignity. In the Commission’s opinion, differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question (loc. cit., p. 62, § 207). 280. With these considerations in mind the Court cannot but observe that the United Nations Secretary-General, in his progress report of 10 December 1995 on the ‘Karpas Brief’ (see paragraph 36 above), stated that the review carried out by UNFICYP of the living conditions of the 475

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281.

282.

283.

284.

476

Karpas Greek Cypriots confirmed that they were the object of very severe restrictions which curtailed the exercise of basic freedoms and had the effect of ensuring that, inexorably, with the passage of time, the community would cease to exist. He made reference to the facts that the Karpas Greek Cypriots were not permitted by the authorities to bequeath immovable property to a relative, even the next-of-kin, unless the latter also lived in the north; there were no secondary-school facilities in the north and Greek-Cypriot children who opted to attend secondary schools in the south were denied the right to reside in the north once they reached the age of 16 in the case of males and 18 in the case of females. The Court notes that the Humanitarian Review reflected in the ‘Karpas Brief’ covered the years 1994–95, which fall within the period under consideration for the purposes of the complaints contained in the present application. It recalls that the matters raised by the United Nations Secretary-General in his progress report have, from the perspective of the Court’s analysis, led it to conclude that there have been violations of the enclaved Greek Cypriots’ Convention rights. It further notes that the restrictions on this community’s freedom of movement weigh heavily on their enjoyment of private and family life (see paragraphs 292–93 above) and their right to practise their religion (see paragraph 245 above). The Court has found that Articles 8 and 9 of the Convention have been violated in this respect. For the Court it is an inescapable conclusion that the interferences at issue were directed at the Karpas Greek-Cypriot community for the very reason that they belonged to this class of persons. The treatment to which they were subjected during the period under consideration can only be explained in terms of the features which distinguish them from the Turkish-Cypriot population, namely their ethnic origin, race and religion. The Court would further note that it is the policy of the respondent State to pursue discussions within the framework of the inter-communal talks on the basis of bi-zonal and bi-communal principles (see paragraph 16 above). The respondent State’s attachment to these principles must be considered to be reflected in the situation in which the Karpas Greek Cypriots live and are compelled to live: isolated, restricted in their movements, controlled and with no prospect of renewing or developing their community. The conditions under which that population is condemned to live are debasing and violate the very notion of respect for the human dignity of its members. In the Court’s opinion, and with reference to the period under consideration, the discriminatory treatment attained a level of severity which amounted to degrading treatment. The Court concludes that there has been a violation of Article 3 of the Convention in that the Greek Cypriots living in the Karpas area of

European Court of Human Rights northern Cyprus have been subjected to discrimination amounting to degrading treatment. 3. Article 14 of the Convention taken in conjunction with Article 3 285. The applicant Government stated that, notwithstanding the Commission’s conclusion on their complaint under Article 3, a conclusion which they endorsed, the Court should give separate examination to the discriminatory measures imposed on, and exclusively on, Greek Cypriots living in northern Cyprus from the standpoint of compliance with Article 14 of the Convention. The applicant Government submitted that, since the enclaved Greek Cypriots were victims of unreasonable and unjustified differences in treatment based on racial and religious grounds, the fundamental principle underlying Article 14 was violated as a matter of practice. They contended that the elements of discrimination included the pattern of restrictions and pressures which constituted the policy of ethnic cleansing in the Karpas region; the respondent State’s policy of demographic homogeneity; the continuing violations of Greek-Cypriots’ property rights as a consequence of the systematic implantation of settlers; the restrictions on the movement of displaced Greek Cypriots as a facet of ethnic exclusiveness; the transfer of possession of the property of displaced Greek Cypriots forced to leave the Karpas region to Turkish settlers; and the continued deprivation of possessions of Greek Cypriots located within the Turkish-occupied area. 286. The Commission, for its part, did not find it necessary, in view of its finding on the applicant Government’s Article 3 complaint, to consider the instant complaints also in the context of the respondent State’s obligations under Article 14. 287. The Court agrees with the Commission’s conclusion. Having regard to the reasoning which underpins its own finding of a violation of Article 3 it considers that there is no need to pronounce separately on what is in reality a restatement of a complaint which is substantially addressed in that finding. 288. The Court concludes therefore that, in view of its finding under Article 3 of the Convention, it is not necessary to examine whether during the period under consideration there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 in respect of Greek Cypriots living in northern Cyprus. 4. Article 14 of the Convention taken in conjunction with other relevant Articles 289. The applicant Government requested the Court to find that the respondent State’s policies towards the enclaved Greek Cypriots involved violations of Article 14 of the Convention taken in conjunction with the relevant provisions. They submitted that the population concerned was 477

Part II: Cyprus–Europe Relations (1983–2006) discriminated against in the enjoyment of the rights guaranteed under these provisions on racial, religious and linguistic grounds. 290. The Court considers that, having regard to the particular circumstances of this case, it is not necessary to examine whether during the period under consideration there has been a violation of Article 14 of the Convention taken in conjunction with the other relevant Articles. D. Alleged violation of Article 13 of the Convention 291. The applicant Government contended that, both as a matter of law and practice, the respondent State failed to provide an effective remedy before a national authority which complied either with Article 6 or other requirements which would bring the remedy into line with the requirements of Article 13. 292. The applicant Government invoked Article 13 of the Convention in support of their allegations that Greek Cypriots living in northern Cyprus were denied any opportunity to contest interferences with their rights, including by private persons acting with the acquiescence or encouragement of the ‘TRNC’ authorities. 293. The applicant Government did not dispute the Commission’s finding of a violation of Article 13 with respect to the interferences by the ‘TRNC’ authorities with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1. 294. However, in the applicant Government’s view, the Commission had erred in its conclusions that, in respect of interference by private persons with the rights of the enclaved Greek Cypriots to respect for their home (Article 8) and property (Article 1 of Protocol No. 1), Article 13 had not been violated. The applicant Government emphasised that these conclusions overlooked, firstly, the inadequacies of ‘TRNC’ courts from the standpoint of the requirements of Article 6 of the Convention (see paragraphs 83–85 above) and, secondly, the evidentiary test for establishing the existence of an administrative practice of violation of Convention rights (see paragraph 114 above). As to the latter point, the applicant Government maintained that, rather than examining whether there was ‘substantial evidence’ before it which pointed to a pattern or system of non-investigation of criminal acts against the population concerned, and it clearly did, the Commission had wrongly focused on whether there were effective remedies available to aggrieved persons before the ‘TRNC’ courts. The applicant Government contended that the Commission had failed, in particular, to take account of the fact that there was a failure, imputable to the respondent State, to provide effective remedies through tolerance by the authorities of repeated acts of criminality against the homes and property of the Greek-Cypriot population and that failure could not be 478

European Court of Human Rights condoned on the misconceived assumption that the ‘TRNC’ courts existed as a means of redress. For this reason, the applicant Government requested the Court to declare that Article 13 of the Convention had also been violated in respect of trespass and damage to property by private persons and interferences by them with the right to respect for the home of Greek Cypriots. 295. The Commission recalled its conclusion in respect of the applicant Government’s complaint under Article 6 of the Convention (see paragraphs 230–32 above) as well as its decision to consider the issue of whether an effective remedy within the meaning of former Article 26 could be considered to exist in respect of the different allegations advanced by the applicant Government (see paragraphs 86–88 above). With that in mind, the Commission concluded that there had been no violation of Article 13 in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under Articles 8 of the Convention and Article 1 of Protocol No. 1, whereas there had been a violation of Article 13 in respect of interferences by the authorities with their rights under Articles 3, 8, 9, and 10 of the Convention and Articles 1 and 2 of Protocol No. 1. 296. The Court agrees with the Commission’s conclusion. It recalls that it has analysed in respect of the various allegations advanced by the applicant Government whether the persons concerned had available to them remedies which were sufficiently certain not only in theory but also in practice and whether there were any special circumstances which might be considered to absolve them from the requirement to exhaust them (see paragraph 99 above). In so doing, the Court has had regard to the burden of proof and how it is distributed between the parties in respect of the exhaustion rule (see paragraph 116 above). In the absence of the respondent Government in the proceedings before it, the Court has had especial regard to the oral and written evidence adduced in the case and has taken due account of the applicant Government’s submissions raising points and evidence on which they disagree with the Commission’s findings, including the existence of domestic remedies. 297. Notwithstanding the applicant Government’s objections to certain of the Commission’s conclusions, the Court is led to reaffirm on the evidence its earlier conclusions, which, it recalls, reflect those of the Commission. These are summarised below. Firstly, the Court finds that no violation of Article 13 of the Convention has been established in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1. It recalls in this respect that it has not been shown on the evidence that during the period under consideration there was an administrative practice on the part of 479

Part II: Cyprus–Europe Relations (1983–2006) the ‘TRNC’ authorities of condoning acts of criminality against the homes and property of the enclaved Greek-Cypriot population; nor has it been shown to the same standard of proof that there was an administrative practice of denying aggrieved persons access to a court to assert rights in this connection. In the proceedings before the Commission, the respondent Government produced evidence in support of their contention that court remedies were available and highlighted the successful claims brought by a number of Greek-Cypriot litigants. While observing that neither Article 6 nor Article 13 of the Convention guarantee a successful outcome to an applicant in court proceedings, the Court considers that the applicant Government have failed to rebut the evidence laid before the Commission that aggrieved Greek Cypriots had access to local courts in order to assert civil claims against wrongdoers. Secondly, it finds that there has been a violation of Article 13 of the Convention in respect of interferences by the authorities with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1. These interferences resulted from an administrative practice of violating the rights at issue; no remedies, or no effective remedies, were available to aggrieved persons. VI. ALLEGED VIOLATION OF THE RIGHT OF DISPLACED GREEK CYPRIOTS TO HOLD ELECTIONS 298. The applicant Government, in the proceedings before the Commission, claimed that Article 3 of Protocol No. 1 had been violated in that displaced Greek Cypriots were prevented from effectively enjoying the right freely to elect representatives in the Cyprus legislature in respect of the occupied territory. The applicant Government did not pursue this complaint before the Court either in their written or oral submissions. 299. The Court, while noting that the Commission did not find on the merits that the provision in question had been violated, does not consider it necessary to examine the complaint, having regard to the fact that the complaint has not been pursued by the applicant Government. 300. The Court concludes, accordingly, that it is not necessary to examine of its own motion whether the facts disclose a violation of Article 3 of Protocol No. 1. VII. ALLEGED VIOLATIONS IN RESPECT OF THE RIGHTS OF TURKISH CYPRIOTS, INCLUDING MEMBERS OF THE GYPSY COMMUNITY, LIVING IN NORTHERN CYPRUS 301. The applicant Government pleaded that Turkish Cypriots resident in northern Cyprus who were opponents of the ‘TRNC’ regime, as well as members of the Gypsy community living in the north, were victims of 480

European Court of Human Rights major violations of their Convention rights. These violations, they contended, occurred as a matter of administrative practice. The applicant Government pleaded in addition that there were no effective remedies to secure redress in respect of the violations. 302. The applicant Government relied on Articles 3, 5, 6, 8, 10, 11, 13 and 14 of the Convention and Articles 1 and 2 of Protocol No. 1, distinguishing, as appropriate, between alleged violations of the rights of Turkish Cypriots and those of the Gypsy community. A. The scope of the complaints before the Court 1. The applicant Government’s submissions 303. In the applicant Government’s submission, the Commission had incorrectly excluded from the scope of its examination on the merits several major complaints on the ground that they had not been raised in specific form at the admissibility stage of the proceedings and were thus not in substance covered by the admissibility decision. The complaints in question related to, inter alia: pervasive discrimination against and the degrading treatment of the Gypsy community, in breach of Article 3; degrading treatment of Turkish Cypriots, including arrests and detention of political opponents and of those who sought asylum in the United Kingdom because of human-rights violations, in breach of Article 3; the conferment of extensive jurisdiction on military courts to try civilians, in breach of Article 6; and violations of the right to respect for private and family life and the home of indigenous Turkish Cypriots through a policy of mass settlement and colonisation by mainland Turks, in breach of Article 8. 304. The applicant Government disputed the Commission’s approach to the interpretation of the admissibility decision and in particular its view that the above-mentioned complaints were only expanded on at the merits stage. They asserted that all of the above-mentioned issues had either explicitly or by necessary implication been raised as complaints at the admissibility stage. The applicant Government argued that the evidence which they had adduced at the merits stage did not raise new issues but was relevant to the issues or grounds of complaint already raised. They sought support for this view in their contention that the respondent Government had replied to these complaints in their observations of November 1997 and were given until 27 August 1998 by the Commission to forward further observations following Cyprus’s submissions on 1 June 1998. They added that the Commission had itself laid down the scope of the complaints to be considered in the mandate which it had assigned to the delegates on 15 September 1997. The applicant Government insisted that all of their complaints were within the scope of the mandate as defined by the Commission. 481

Part II: Cyprus–Europe Relations (1983–2006) 2. The Court’s response 305. The Court notes that the Commission declared admissible complaints introduced by the applicant Government under Articles 5, 6, 10, 11 and 13 of the Convention and Article 1 of Protocol No 1. These complaints were made with respect to Turkish Cypriots. The Commission also declared admissible complaints under Articles 3, 5 and 8 of the Convention in relation to the treatment of Turkish-Cypriot Gypsies who had sought asylum in the United Kingdom. The Court observes that in respect of all these complaints the applicant Government relied on specific sets of facts in support of their allegations. At the merits stage the applicant Government advanced further materials which, in their view, were intended to elaborate on the facts initially pleaded in support of the complaints declared admissible. However, in the Commission’s opinion the materials had the effect of introducing new complaints which had not been examined at the admissibility stage. For this reason, the Commission could not entertain what it considered to be ‘additional complaints’. The Court notes that the complaints now invoked by the applicant Government fall into this category. 306. The Court finds no reason to depart from the Commission’s view of the scope of its admissibility decision. It notes in this respect that the Commission carefully examined the materials submitted by the applicant Government in the post-admissibility phase and was anxious not to exclude any further submissions of fact which could reasonably be considered to be inherently covered by its admissibility decision. It is for this reason that the Commission could properly relate the applicant Government’s post-admissibility pleadings on various aspects of the alleged treatment of political opponents to the complaint which it had declared admissible under Article 5 of the Convention relating to violation of the security of their person. In a similar vein, the Court also considers that the Commission was justified in rejecting complaints which it clearly felt were new complaints, for example as regards the effects of the respondent State’s policy with respect to settlers on the right of the indigenous Turkish Cypriots to respect for private life. 307. The Court recalls that the Commission’s decision declaring an application admissible determines the scope of the case brought before the Court; it is only within the framework so traced that the Court, once a case is duly referred to it, may take cognisance of all questions of fact or of law arising in the course of the proceedings (see the above-mentioned Ireland v. the United Kingdom judgment, p. 63, § 157, and the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, § 56). Accordingly it is the facts as declared admissible by the Commission which are decisive for its jurisdiction (see, for example, the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998–I, p. 223, § 44). Although the Court is empowered to give a characterisation in law 482

European Court of Human Rights to those facts which is different from that applied in the proceedings before the Commission, its jurisdiction cannot extend to considering the merits of new complaints which have not been pleaded at the admissibility stage of the proceedings with reference to supporting facts (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997–I, pp. 277–78, § 63); nor is the Court persuaded by the applicant Government’s argument that the grounds set out in their original application were closely connected with the ones pleaded at the merits stage but rejected by the Commission. 308. For these reasons, and having regard to the facts and grounds of complaint advanced by the applicant Government at the admissibility stage, the Court confirms the Commission’s view of the scope of its admissibility decision. On that account it will not examine any complaints adjudged by the Commission to fall outside the scope of that decision. B. The establishment of the facts 1. The applicant Government’s submissions 309. The applicant Government maintained that the Commission had applied the wrong legal test in determining whether there existed an administrative practice of violating the Convention. They referred in this connection to the Commission’s findings that it had not been proved ‘beyond reasonable doubt’, firstly, that there was a practice by the ‘TRNC’ authorities and the courts of refusing legal protection to political opponents; secondly, that there was a practice of discriminating against the Gypsy community or denying them legal protection; and, thirdly, that there was a practice of condoning interferences by criminal conduct with the property of Turkish Cypriots or denying the latter legal protection. 310. The applicant Government submitted in the above connection that it was sufficient under the Convention to establish proof of a practice with reference to the existence of ‘substantial evidence’ of such, which, as regards these three allegations, there clearly was. 311. As to the Commission’s evaluation of the evidence, the applicant Government claimed that the value of certain of the Commission’s findings of no violation was undermined on account of the limits placed by the Commission’s delegates on the number of witnesses who could be heard and the conclusions which the Commission drew from the credibility of those witnesses who did in fact testify. 2. The Court’s response 312. The Court reiterates at the outset its earlier conclusion that limits placed by the Commission’s delegates on the number of witnesses who could be heard in support of the Government’s case did not undermine the principle of procedural equality (see paragraph 110 above). It is the applicant 483

Part II: Cyprus–Europe Relations (1983–2006) Government’s contention that the delegates, by refusing to allow additional witness testimony, denied themselves the opportunity to be apprised fully of the weight of the evidence against the respondent State. However, in the Court’s view, the delegates’ decision could properly be justified with reference to their perception of relevance and sufficiency of evidence at the time of the hearing of witnesses. The Court sees no reason to doubt that the delegates would have admitted further witnesses had they considered that additional oral testimony would have contributed to the substantiation of the facts as alleged by the applicant Government. Moreover, it does not appear to the Court that the applicant Government pressed their wish to have further witnesses heard by the delegates. The main protest to the arrangements made by the delegates for hearing witnesses came from the respondent’s side (see paragraphs 109–10 above). This must be seen as a relevant consideration to be weighed in the balance. 313. The Court is of course attentive to the fact that, unlike the investigation conducted into the situation of the Karpas Greek Cypriots, the Commission’s establishment of the facts in respect of the instant category of complaints could not draw on United Nations factual reviews. The Commission relied heavily on the evidence of the witnesses heard by the delegates. It does not appear to the Court that the Commission can be faulted for adopting a cautious approach to the evaluation of witness testimony, having regard to the nature of the allegations made by the applicant Government’s witnesses, the inevitable element of subjectivity which colours the evidence of individuals who are impugning a regime with which they profoundly disagree and the testimony of supporters of that regime. In the Court’s opinion, the Commission was correct in its decision to base its evaluation mostly on the common points which emerged from the various witnesses’ testimony as a whole. It does not see any reason to depart from the facts as found by the Commission (see paragraphs 52–55 above). 314. The Court will ascertain whether the facts as found disclose a violation of the rights invoked by the applicant Government. As to the standard of proof, it rejects the applicant Government’s submissions in respect thereof and will apply a standard of proof ‘beyond reasonable doubt’. C. The merits of the applicant Government’s complaints 1. Complaints relating to Turkish-Cypriot political opponents 315. The applicant Government alleged that Turkish Cypriots living in northern Cyprus who were political opponents of the ‘TRNC’ regime were subject to arbitrary arrest and detention, in violation of their rights under Article 5 of the Convention. In addition, they were assaulted, threatened and harassed by third parties, in violation of Article 8 of the Convention. The applicant Government further alleged, with reference to Article 10 of the Convention, 484

European Court of Human Rights that the authorities failed to protect the right to freedom of expression by tolerating third-party constraints on the exercise of this right. These constraints took the form of, for example, denial of employment to political opponents or threats or assaults by private parties against their person. The applicant Government further contended that as a result of the TRNC’s general policy in the area of freedom of movement, the right of political opponents to freedom of association was violated on account of the interferences with their right to gather with Greek Cypriots and others in Cyprus. Finally, the applicant Government asserted that, in view of the aforementioned background, it had to be concluded that political opponents of the ‘TRNC’ regime were victims of ill-treatment or degrading treatment in breach of Article 3 of the Convention. 316. The applicant Government averred that there was an administrative practice of violation of the above Convention rights and that this was confirmed by the substantial evidence adduced by the witnesses who were heard by the delegates. They maintained that the oral testimony commonly and consistently established administrative practices of the ‘TRNC’ authorities of refusing to protect the rights of political opponents of the ruling parties, irrespective of whether such interferences were caused by third parties or by the authorities themselves. 317. The applicant Government further stated that the Commission had erred in its conclusion that habeas corpus proceedings ought to have been used by victims of unlawful arrest and detention. That remedy, they submitted, could not be considered effective in cases of brief arrests and detentions followed by release, all the more so since detainees had no access to a lawyer. Nor could the potential to seek a remedy ipso facto prevent the finding of an administrative practice of violation of Convention rights. In the applicant Government’s submission the Commission’s focus should have been on the tolerance by the authorities of repeated abuse of the rights of political opponents under Articles 5, 8 and 10 and 11 of the Convention. For the applicant Government, the practice which they alleged was based on that state of affairs, not on the non-availability of judicial remedies. 318. The Commission concluded that there had been no violation of the rights invoked by the applicant Government by reason of failure to protect these rights. The Commission observed that it could not be excluded that in individual cases there had been interferences by the authorities with the rights of Turkish Cypriots by reason of their political opposition to the ruling parties in northern Cyprus. However, it also noted that the individuals concerned did not attempt to seek redress for their grievances, for example by making use of the remedy of habeas corpus to challenge the lawfulness of their arrest or detention. For the Commission, it had not been shown beyond reasonable doubt that all of the available remedies would have been ineffective. 485

Part II: Cyprus–Europe Relations (1983–2006) 319. The Court accepts the Commission’s conclusion. Its own assessment of the evidence leads it to believe that there may have been individual cases of interferences with the rights of political opponents. However, it cannot conclude on the strength of that evidence that there existed during the period under consideration an administrative practice of suppressing all dissent directed at the ‘TRNC’ ruling parties or an official policy of acquiescing in interferences by pro-‘TRNC’ supporters with the rights invoked by the applicant Government. The Court must have regard to the fact that the complaints alleged by the applicant Government are shaped in a vulnerable political context bolstered by a strong Turkish military presence and characterised by social rivalry between Turkish settlers and the indigenous population. Such a context has led to tension and, regrettably, to acts on the part of the agents of the ‘TRNC’ which violate Convention rights in individual cases. However, the Court considers that neither the evidence adduced by the applicant Government before the Commission nor their criticism of the Commission’s evaluation of that evidence can be said to controvert the finding that it has not been shown beyond reasonable doubt that the alleged practice existed during the period under consideration. 320. The Court further notes that the Commission observed that aggrieved individuals did not test the effectiveness of remedies available in the ‘TRNC’ legal system in order to secure redress for their complaints. The Court for its part considers that the respondent Government, in their submissions to the Commission, made out a case for the availability of remedies, including the remedy of habeas corpus. It is not persuaded on the evidence before it that it has been shown that these remedies were inadequate and ineffective in respect of the matters complained of or that there existed special circumstances absolving the individuals in question from the requirement to avail themselves of these remedies. In particular, and as previously noted, the evidence does not show to the Court’s satisfaction that the ‘TRNC’ authorities have, as a matter of administrative practice, remained totally passive in the face of serious allegations of misconduct or infliction of harm either by State agents or private parties acting with impunity (see, mutatis mutandis, the abovementioned Akdivar and Others judgment, p. 1211, § 68; and paragraph 115 above, in fine). 321. Having regard to the above considerations, the Court concludes that it has not been established that, during the period under consideration, there has been an administrative practice of violation of the rights of Turkish Cypriots who are opponents of the regime in northern Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention, including by reason of an alleged practice of failing to protect their rights under these provisions.

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European Court of Human Rights 2. Complaints relating to the Turkish-Cypriot Gypsy community 322. The applicant Government stated that the Gypsy community living in northern Cyprus was subjected, as a matter of practice, to discriminatory and degrading treatment so extensive that many Gypsies were compelled to seek political asylum in the United Kingdom. The applicant Government relied on Articles 3, 5, 8 and 14 of the Convention. 323. The applicant Government submitted that the Commission had erred in finding that members of the Gypsy community who had experienced hardship had not exhausted domestic remedies. They contended that the evidence heard by the delegates confirmed that Gypsies could not afford litigation and that legal aid was not available to them for civil proceedings. In any event, the allegation at issue concerned a continuing administrative practice of discriminatory and degrading treatment of the Gypsy community and substantial evidence of such had been adduced. The Commission had wrongly focused on the availability of remedies with reference to the ‘beyond reasonable doubt’ test rather than on the key issue of whether there was substantial evidence of an administrative practice of discriminatory and degrading treatment against the Gypsy community. 324. The Commission observed that individual members of the Gypsy community had experienced hardship during the period under consideration. It referred in this connection to the demolition of the shacks of a Gypsy community near Morphou upon the order of the local authority, the refusal of airline companies to transport Gypsies without a visa and humiliation of Gypsy children in school. However, in the Commission’s conclusion the aggrieved persons had not exhausted available domestic remedies and it had not been established beyond reasonable doubt that there was a deliberate practice to discriminate against Gypsies or withhold protection against social discrimination. The Commission accordingly found that there had been no violation of Articles 3, 5, 8 and 14 of the Convention. 325. The Court observes that members of the Turkish-Cypriot Gypsy community have suffered hardship at the hands of the ‘TRNC’ authorities. It refers in this respect to the instances identified by the Commission (see paragraph 54 above). However, the Court does not consider that these individual cases bear out the claim that there existed during the period under consideration an administrative practice of violating the rights invoked by the applicant Government. It further observes that it does not appear that any of the members of the Turkish-Cypriot Gypsy community who claim to have suffered at the hands of the ‘TRNC’ authorities sought to invoke remedies before the local courts, for example a claim for damages in respect of the demolition of the Gypsy shacks near Morphou. The Court does not accept the applicant Government’s assertion that the unavailability of legal aid in the ‘TRNC’ for the 487

Part II: Cyprus–Europe Relations (1983–2006) bringing of civil actions exonerated aggrieved individuals from the requirement to use domestic remedies. It notes that there is no Convention obligation as such on a Contracting State to operate a civil legal aid system for the benefit of indigent litigants. What is important for the Court is the fact that it does not appear that any attempt has been made to take any legal proceedings whatsoever in respect of the matters alleged by the applicant Government. 326. The Court concludes that it has not been established that, during the period under consideration, there has been a violation as a matter of administrative practice of the rights of members of the Turkish-Cypriot Gypsy community under Articles 3, 5, 8 and 14 of the Convention, including by reason of an alleged practice of failing to protect their rights under these Articles. 3. Alleged violation of Article 6 of the Convention 327. The applicant Government contended that the ‘TRNC’ authorities, as a matter of law and practice, violated Article 6 of the Convention in that civil rights and obligations and criminal charges against persons could not be determined by an independent and impartial tribunal established by law within the meaning of that provision. The applicant Government reiterated in this connection their view as to the illegality of the context in which ‘TRNC’ courts operated (see paragraphs 83–85 above). 328. The applicant Government further submitted that the ‘TRNC’ authorities operated a system of military courts which had jurisdiction to try cases against civilians in respect of matters categorised as military offences. In their view it followed from the Court’s Incal v. Turkey judgment of 9 June 1998 (Reports 1998–IV) that a civilian tried before a military court was denied a fair hearing before an independent and impartial tribunal. The jurisdiction of the military courts in this respect was laid down in ‘Article 156 of the TRNC Constitution’, with the result that their composition could not be challenged. The applicant Government maintained that the Commission should have found a violation of Article 6 on account of the existence of a legislative practice of violation rather than concentrating on the issue as to whether there was evidence of any particular proceedings before military courts involving civilians. They further stressed that, contrary to the Commission’s conclusion on this point, the evidence adduced before the Commission provided concrete examples of civilians having been tried and convicted before military courts. This evidence was regrettably overlooked in the Commission’s assessment. 329. The Commission did not find it established on the facts that military courts tried any civilians during the period under consideration. On that account it concluded that there had been no violation of Article 6 of the Convention. 488

European Court of Human Rights 330. The Court considers that it does not have to be satisfied on the evidence that there was an administrative practice of trying civilians before military courts in the ‘TRNC’. It observes that the applicant Government complain about the existence of a legislative practice of violating Article 6, having regard to the clear terms of ‘Article 156 of the TRNC Constitution’ and the ‘Prohibited Military Areas Decree’ (see paragraph 355 above). It recalls in this connection that in its Ireland v. the United Kingdom judgment, the Court considered that, unlike individual applicants, a Contracting State was entitled to challenge under the Convention a law in abstracto having regard to the fact that former Article 24 (current Article 33) of the Convention enabled any Contracting State to refer to the Commission any alleged breach of the provisions of the Convention and the Protocols thereto by another Contracting State (see the abovementioned Ireland v. the United Kingdom judgment, p. 91, § 240). In the same judgment the Court found that a ‘breach’ within the meaning of former Article 24 (current Article 33) resulted from the mere existence of a law which introduced, directed or authorised measures incompatible with the rights and freedoms safeguarded. The Court further stated that a breach of this kind might only be found if the law challenged pursuant to former Article 24 (current Article 33) was couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision should be arrived at by reference to the manner in which the respondent State interpreted and applied in concreto the impugned text or texts (ibid.). 331. For the Court, examination in abstracto of the impugned ‘constitutional provision’ and the ‘Prohibited Military Areas Decree’ leads it to conclude that these texts clearly introduced and authorised the trial of civilians by military courts. It considers that there is no reason to doubt that these courts suffer from the same defects of independence and impartiality which were highlighted in its Incal v. Turkey judgment in respect of the system of National Security Courts established in Turkey by the respondent State (judgment cited above, pp. 1572–73, §§ 70–72), in particular the close structural links between the executive power and the military officers serving on the ‘TRNC’ military courts. In the Court’s view, civilians in the ‘TRNC’ accused of acts characterised as military offences before such courts could legitimately fear that they lacked independence and impartiality. 332. For the above reasons the Court finds that there has been a violation of Article 6 of the Convention on account of the legislative practice of authorising the trial of civilians by military courts. 4. Alleged violation of Article 10 of the Convention 333. The applicant Government complained in the proceedings before the Commission that the right of Turkish Cypriots living in northern Cyprus 489

Part II: Cyprus–Europe Relations (1983–2006) to receive information was violated on account of a prohibition on the circulation of Greek-language newspapers. The applicant Government did not revert to this complaint in their memorial or at the public hearing. 334. The Commission found, with reference to a similar complaint raised in the context of the living conditions of the Karpas Greek Cypriots, that the alleged restrictions on the circulation of Greek-language newspapers in northern Cyprus had not been substantiated. 335. The Court agrees with the Commission’s conclusion and notes that it is consistent with the finding reached on the evidence in connection with the alleged interference with Article 10 invoked with respect to the enclaved Greek-Cypriot population (see paragraphs 253–54 above). 336. The Court holds, accordingly, that no violation of Article 10 of the Convention has been established by virtue of alleged restrictions on the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press. 5. Alleged violation of Article 11 of the Convention 337. The applicant Government stated that, as a result of the TRNC’s general policy in the area of freedom of movement, there was an administrative practice of interference, dating from 1974, with the right of Turkish Cypriots living in the north to meet or foregather with Greek Cypriots and others in Cyprus, particularly in the United Nations buffer-zone and in the government-controlled area. 338. The applicant Government highlighted several instances of arbitrary restrictions being imposed on persons wishing to attend bi-communal meetings, including sports and music events. They drew attention to their claim that the respondent Government had themselves in their observations on the admissibility and merits of this complaint submitted evidence to the Commission of the administrative practice of imposing from 1994 through to 1996 continuing restrictions on the right of Turkish Cypriots to travel to the south. This period, they recalled, was the period under consideration. 339. The applicant Government acknowledged that the original complaint formulated to the Commission was framed in terms of an administrative practice of interference with the right of Turkish Cypriots living in the north to freedom of association. They requested the Court to examine also the complaint in the terms described above. As to the restrictions on the right to freedom of association, they contended that the evidence heard by the delegates clearly established a violation of this right. They further observed in support of this allegation that ‘Articles 12 and 71 of the TRNC Constitution’ precluded the formation of associations to promote the interests of minorities. In their view, the existence of such a prohibition should in itself be considered a violation of Article 11 of the Convention. 490

European Court of Human Rights 340. The Commission observed that nothing was brought to its attention to the effect that during the period under consideration there had been attempts by Turkish Cypriots living in northern Cyprus to establish associations with Greek Cypriots in the northern or southern parts of Cyprus which were prevented by the authorities. On that account the Commission found the complaint to be unsubstantiated. 341. As to impediments to participation by Turkish Cypriots in bi-communal events, the Commission noted that, according to relevant United Nations documents, certain restrictions had been placed in the way of intercommunal meetings as from the second half of 1996. In the Commission’s opinion, any complaint to that effect related to distinct facts which occurred after the date of the admissibility decision. For that reason a complaint could not be entertained. 342. The Court recalls that it has accepted the facts as established by the Commission (see paragraphs 339–40 above). It does not consider that, on the basis of the evidence before it, there was, during the period under consideration, an administrative practice of impeding all bicommunal contacts between Turkish Cypriots living in the north and Greek Cypriots in the south. The Court notes that the ‘TRNC’ authorities took a much more rigorous approach to such contacts after the second half of 1996 and indeed prohibited them. However, and as noted by the Commission, alleged violations of Convention rights occurring during that period are outside the scope of the admissibility decision (see paragraph 368 above). 343. As to the alleged interference with the right of Turkish Cypriots living in the north to freedom of association, the Court observes that the Commission found on the evidence that the ‘TRNC’ authorities had not made any attempt to intervene to prevent the creation of bi-communal organisations in the north of Cyprus. In the absence of any concrete evidence to the contrary, and having regard to the requisite standard of proof for establishing the existence of an administrative practice of violating a Convention right, the Court concludes that there has been no violation of Article 11 from this standpoint either. 344. The Court finds therefore that it has not been established that there has been a violation, as a matter of administrative practice, of the right to freedom of association or assembly under Article 11 of the Convention in respect of Turkish Cypriots living in northern Cyprus. 6. Alleged violation of Article 1 of Protocol No. 1 345. The applicant Government maintained in the proceedings before the Commission that there was a continuing violation of Article 1 of Protocol No. 1, firstly, on account of the failure of the ‘TRNC’ authorities to allow Turkish Cypriots living in northern Cyprus to return to their property in the south and, secondly, as a result of the tolerance shown by the same 491

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346.

347.

348.

349.

350.

authorities to acts of criminal damage to the property of Turkish Cypriots committed by private parties. The applicant Government stated before the Court that, regarding the second complaint, the Commission wrongly concluded that it had not been established that there existed an administrative practice by the ‘TRNC’ authorities of systematically condoning third-party interferences with the property of Turkish Cypriots. The applicant Government did not revert to the first complaint either in their memorial or at the hearing. The Commission found that no cases were brought to its attention where during the period under consideration Turkish Cypriots living in northern Cyprus made attempts to access their property in the south and were prevented from doing so. The complaint was therefore rejected for want of substantiation. As to the alleged unlawful interference by private persons with the property of Turkish Cypriots living in northern Cyprus, the Commission considered, firstly, that sufficient remedies existed to secure redress against such interferences and, secondly, that it was not established that there existed an administrative practice of condoning the interferences. The Court accepts the Commission’s conclusion. It observes in the first place that the applicant Government have not improved the case they sought to make out before the Commission concerning the alleged obstacles placed by the ‘TRNC’ authorities in the way of Turkish Cypriots who wished to return to their homes in the south. No further evidence has been adduced before the Court of Turkish Cypriots living in the north who, during the period under consideration, have been prevented from having access to their property in the south on account of the functioning of ‘TRNC’ restrictions on the freedom of movement. Secondly, and as to the alleged attacks by private parties on the property of Turkish Cypriots, the Court considers that the evidence relied on by the applicant Government does not bear out their claim that the ‘TRNC’ authorities tolerate, encourage or in any way acquiesce in this form of criminality. The Court accepts on the evidence that it cannot be excluded that such incidents have occurred. However, that evidence does not substantiate the existence of an administrative practice of violation of Article 1 of Protocol No. 1. In view of the above considerations, the Court concludes that it has not been established that there has been a violation of Article 1 of Protocol No. 1 by reason of the alleged administrative practice of violating that Article, including by reason of failure to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus.

7. Alleged violation of Article 13 of the Convention 351. The applicant Government challenged the Commission’s finding that there had been no violation of Article 13 of the Convention by reason 492

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352.

353.

354.

355.

356.

of failure to secure effective remedies to Turkish Cypriots living in northern Cyprus. The applicant Government reiterated their view (see paragraphs 83–85 above) that the legal remedies which were claimed to be available did not satisfy the basic requirements of Article 6 and, as a consequence, could not be considered to be ‘effective’ within the meaning of Article 13. Furthermore, the applicant Government reasserted their view (see paragraphs 336–37 above) that the Commission had erroneously relied on the ‘beyond reasonable doubt’ standard in ascertaining whether there was an administrative practice of withholding legal remedies from certain groups of persons. Had it applied the correct standard, namely that of ‘substantial evidence’, it would have been compelled to reach a different conclusion. For the above reasons the applicant Government requested the Court to depart from the Commission’s finding and to rule that the respondent State, as a matter of law and practice, violated Article 13 by reason of its failure to provide an effective remedy before a national authority to the Gypsy community and political opponents of Turkey’s policy in Cyprus. The Commission considered that, generally speaking, the remedies provided by the ‘TRNC’ legal system appeared sufficient to provide redress against any alleged violation of Convention rights in respect of the groups at issue and that the applicant Government had not substantiated their allegation concerning the existence of a practice of violating Article 13. It thus concluded that there had been no violation of Article 13 during the period under consideration. The Court recalls that, as regards their allegations concerning political opponents (see paragraphs 342–44 above) and the Gypsy community (see paragraphs 349–50 above), it considered that the applicant Government had not succeeded in refuting the respondent Government’s submissions in the proceedings before the Commission that remedies were available to aggrieved individuals within the ‘TRNC’ legal system. The Court was not persuaded that any attempt to invoke a remedy was doomed to failure. On that account the Court could not accept the applicant Government’s allegation that there was an administrative practice of denying remedies to individuals, in breach of Article 13 of the Convention. The evidence before the Court in this connection cannot be said to prove beyond reasonable doubt the existence of any such practice. The Court concludes accordingly that no violation of Article 13 of the Convention has been established by reason of a failure as a matter of administrative practice to secure effective remedies to Turkish Cypriots living in northern Cyprus.

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Part II: Cyprus–Europe Relations (1983–2006) VIII. ALLEGED VIOLATIONS OF ARTICLES 1, 17, 18 AND FORMER ARTICLE 32 § 4 OF THE CONVENTION 357. The applicant Government requested the Court to find violations of Articles 1, 17, 18 and former Article 32 § 4 of the Convention. Article 1 provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.’ Former Article 32 § 4 of the Convention provides: ‘The High Contracting Parties undertake to regard as binding on them any decision which the Committee of Ministers may take in application of the preceding paragraphs.’

358. The applicant Government contended that in view of the comprehensive and massive violations of the Convention committed by the respondent State, it would be appropriate in this case for the Court to find a violation of Article 1. 359. The applicant Government further submitted that the facts disclosed that the respondent State in reality controlled Greek-Cypriot property in the north in pursuance of a policy of ethnic cleansing. The respondent State’s resettlement programme was also a clear manifestation of this policy. However, the respondent State sought to conceal its real aim with reference to the limitations on rights permitted under Article 8 § 2 or Article 1 of Protocol No. 1. The applicant Government submitted that the respondent State must be considered in the circumstances to have violated Articles 17 and 18 of the Convention. 360. The applicant Government finally submitted that the respondent State had failed to put an end to the violations of the Convention established in the Commission’s 1976 report as requested in the Committee of Ministers’ decision of 21 October 1977 (see paragraph 17 above). The applicant Government stated that the Court should note any continuing violations of the Convention which it found had continued after that decision. They also submitted that the Court should consider it to be a further aggravating factor that violations of the Convention had continued for more than twenty years and that the respondent State’s official policy had directly resulted in violations after the Committee of Ministers’ decision. 361. The Court considers that it is unnecessary in the circumstances to examine separately these complaints. It further recalls that, regarding the 494

European Court of Human Rights applicant Government’s complaints under Articles 17 and 18, it reached the same conclusion in the context of similar allegations made with respect to alleged interferences with the rights of Greek-Cypriot displaced persons’ property (see paragraph 206 above). FOR THESE REASONS, THE COURT I. Preliminary issues 1. Holds unanimously that it has jurisdiction to examine the preliminary issues raised in the proceedings before the Commission (paragraphs 56– 58); 2. Holds unanimously that the applicant Government have locus standi to bring the application (paragraph 62); 3. Holds unanimously that the applicant Government have a legitimate legal interest in having the merits of the application examined (paragraph 68); 4. Holds by sixteen votes to one that the facts complained of in the application fall within the ‘jurisdiction’ of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention (paragraph 80); 5. Holds by ten votes to seven that, for the purposes of former Article 26 (current Article 35 § 1) of the Convention, remedies available in the ‘TRNC’ may be regarded as ‘domestic remedies’ of the respondent State and that the question of the effectiveness of these remedies is to be considered in the specific circumstances where it arises (paragraph 102); 6. Holds unanimously that situations which ended more than six months before the date of introduction of the present application (22 May 1994) fall outside the scope of the Court’s examination (paragraph 104). II. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives 1. Holds unanimously that there has been no breach of Article 2 of the Convention by reason of an alleged violation of a substantive obligation under that Article in respect of any of the missing persons (paragraph 130). 2. Holds by sixteen votes to one that there has been a continuing violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances (paragraph 136); 3. Holds unanimously that no breach of Article 4 of the Convention has been established (paragraph 141); 4. Holds by sixteen votes to one that there has been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the where495

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5.

6.

7.

8.

abouts and fate of the Greek-Cypriot missing persons in respect of whom there is an arguable claim that they were in Turkish custody at the time of their disappearance (paragraph 150); Holds unanimously that no breach of Article 5 of the Convention has been established by virtue of the alleged actual detention of GreekCypriot missing persons (paragraph 151); Holds unanimously that it is not necessary to examine the applicant Government’s complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons (paragraph 153); Holds by sixteen votes to one that there has been a continuing violation of Article 3 of the Convention in respect of the relatives of the GreekCypriot missing persons (paragraph 158); Holds unanimously that it is not necessary to examine whether Articles 8 and 10 of the Convention have been violated in respect of the relatives of the Greek-Cypriot missing persons, having regard to the Court’s conclusion under Article 3 (paragraph 161).

III. Alleged violations of the rights of displaced persons to respect for their home and property 1. Holds by sixteen votes to one that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus (paragraph 175); 2. Holds unanimously that, having regard to its finding of a continuing violation of Article 8 of the Convention, it is not necessary to examine whether there has been a further violation of that Article by reason of the alleged manipulation of the demographic and cultural environment of the Greek-Cypriot displaced persons’ homes in northern Cyprus (paragraph 176); 3. Holds unanimously that the applicant Government’s complaint under Article 8 of the Convention concerning the interference with the right to respect for family life on account of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus falls to be considered in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots (paragraph 177); 4. Holds by sixteen votes to one that there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights (paragraph 189); 5. Holds by sixteen votes to one that there has been a violation of Article 13 of the Convention by reason of the failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences 496

European Court of Human Rights with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1 (paragraph 194); 6. Holds unanimously that it is not necessary to examine whether in this case there has been a violation of Article 14 of the Convention taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for their homes, to the peaceful enjoyment of their possessions and to an effective remedy (paragraph 199); 7. Holds unanimously that it is not necessary to examine whether the alleged discriminatory treatment of Greek-Cypriot displaced persons also gives rise to a breach of Article 3 of the Convention, having regard to its conclusions under Articles 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 (paragraph 203); 8. Holds unanimously that it is not necessary to examine separately the applicant Government’s complaints under Articles 17 and 18 of the Convention, having regard to its findings under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 (paragraph 206). IV. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus 1. Holds by sixteen votes to one that no violation of Article 2 of the Convention has been established by reason of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus (paragraph 221); 2. Holds by sixteen votes to one that there has been no violation of Article 5 of the Convention (paragraph 227); 3. Holds by eleven votes to six that no violation of Article 6 of the Convention has been established in respect of Greek Cypriots living in northern Cyprus by reason of an alleged practice of denying them a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations (paragraph 240); 4. Holds by sixteen votes to one that there has been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus (paragraph 246); 5. Holds unanimously that no violation of Article 9 of the Convention has been established in respect of Maronites living in northern Cyprus (paragraph 247); 6. Holds by sixteen votes to one that there has been a violation of Article 10 of the Convention in respect of Greek Cypriots living in northern Cyprus insofar as school-books destined for use in their primary school were subject to excessive measures of censorship (paragraph 254); 7. Holds unanimously that no violation of Article 11 of the Convention has been established by reason of an alleged practice of denying Greek 497

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8.

9.

10.

11.

12.

13.

14.

15.

16.

498

Cypriots living in northern Cyprus the right to freedom of association (paragraph 263); Holds unanimously that the applicant Government’s complaint under Article 8 of the Convention in respect of an alleged practice of restricting the participation of Greek Cypriots living in northern Cyprus in bicommunal or inter-communal events falls to be considered in the context of the global assessment of whether or not there has been a violation of that Article (paragraph 262); Holds by sixteen votes to one that there has been a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory and in that, in case of death, inheritance rights of relatives living in southern Cyprus were not recognised (paragraphs 269–70); Holds unanimously that no violation of Article 1 of Protocol No. 1 has been established by virtue of an alleged practice of failing to protect the property of Greek Cypriots living in northern Cyprus against interferences by private persons (paragraph 272); Holds by sixteen votes to one that there has been a violation of Article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them (paragraph 280); Holds by sixteen votes to one that, from an overall standpoint, there has been a violation of the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home, as guaranteed by Article 8 of the Convention (paragraphs 296 and 301); Holds unanimously that no violation of Article 8 of the Convention has been established by reason of an alleged practice of interference with the right of Greek Cypriots living in northern Cyprus to respect for their correspondence (paragraph 298); Holds unanimously that it is not necessary to examine separately the applicant Government’s complaint under Article 8 of the Convention concerning the effect of the respondent State’s alleged colonisation policy on the demographic and cultural environment of the Greek Cypriots’ homes, having regard to its overall assessment of the latter population’s living conditions under that Article (paragraph 301); Holds by sixteen votes to one that there has been a violation of Article 3 of the Convention in that the Greek Cypriots living in the Karpas area of northern Cyprus have been subjected to discrimination amounting to degrading treatment (paragraph 311); Holds unanimously that it is not necessary to examine whether there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 in respect of Greek Cypriots living in northern Cyprus, having regard to its finding under Article 3 (paragraph 315);

European Court of Human Rights 17. Holds by fourteen votes to three that, having regard to the particular circumstances of this case, it is not necessary to examine whether there has been a breach of Article 14 of the Convention taken in conjunction with the other relevant Articles (paragraph 317); 18. Holds by eleven votes to six that no violation of Article 13 of the Convention has been established by reason of the alleged absence of remedies in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1 (paragraph 324); 19. Holds by sixteen votes to one that there has been a violation of Article 13 of the Convention by reason of the absence, as a matter of practice, of remedies in respect of interferences by the authorities with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1 (paragraph 324). V. Alleged violation of the right of displaced Greek Cypriots to hold elections Holds unanimously that it is not necessary to examine whether the facts disclose a violation of the right of displaced Greek Cypriots to hold free elections, as guaranteed by Article 3 of Protocol No. 1 (paragraph 327). VI. Alleged violations in respect of the rights of Turkish Cypriots, including members of the Gypsy community, living in northern Cyprus 1. Holds unanimously that it declines jurisdiction to examine those aspects of the applicant Government’s complaints under Articles 6, 8, 10 and 11 of the Convention in respect of political opponents of the regime in the ‘TRNC’ as well as their complaints under Articles 1 and 2 of Protocol No. 1 in respect of the Turkish-Cypriot Gypsy community, which were held by the Commission not to be within the scope of the case as declared admissible (paragraph 335); 2. Holds unanimously that no violation of the rights of Turkish Cypriots who are opponents of the regime in northern Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention has been established by reason of an alleged administrative practice, including an alleged practice of failing to protect their rights under these Articles (paragraph 348); 3. Holds by sixteen votes to one that no violation of the rights of members of the Turkish-Cypriot Gypsy community under Articles 3, 5, 8 and 14 of the Convention has been established by reason of an alleged administrative practice, including an alleged practice of failing to protect their rights under these Articles (paragraph 353); 4. Holds by sixteen votes to one that there has been a violation of Article 6 of the Convention on account of the legislative practice of authorising the trial of civilians by military courts (paragraph 359); 499

Part II: Cyprus–Europe Relations (1983–2006) 5. Holds unanimously that no violation of Article 10 of the Convention has been established by reason of an alleged practice of restricting the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press (paragraph 363); 6. Holds unanimously that no violation of Article 11 of the Convention has been established by reason of an alleged practice of interference with the right to freedom of association or assembly of Turkish Cypriots living in northern Cyprus (paragraph 371); 7. Holds unanimously that no violation of Article 1 of Protocol No. 1 has been established by reason of an alleged administrative practice, including an alleged practice of failing to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus (paragraph 377); 8. Holds by eleven votes to six that no violation of Article 13 of the Convention has been established by reason of an alleged practice of failing to secure effective remedies to Turkish Cypriots living in northern Cyprus (paragraph 383). VII. Alleged violations of other articles of the convention Holds unanimously that it is not necessary to examine separately the applicant Government’s complaints under Articles 1, 17, 18 and former Article 32 § 4 of the Convention (paragraph 388). VIII. The issue of Article 41 of the convention Holds unanimously that the issue of the possible application of Article 41 of the Convention is not ready for decision and adjourns consideration thereof.

50. European Court of Human Rights press release issued by the Registrar Chamber: judgment in the case of Xenides-Arestis v. Turkey (application no. 46347/99) With the court having reaffirmed that properties in the occupied part of Cyprus continued to belong to those who held valid title deeds issued by the Republic of Cyprus government prior to 1974, the Turkish-Cypriot authorities were running out of options. Following previous rulings on Cyprus, the court also reiterated that the ‘TRNC’ remains subordinate to Turkey, which, in that it continues to exercise effective military control in the northern part of the island, is the sole

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European Court of Human Rights authority responsible for human rights violations. In addition, the court overthrew Turkey’s argument that Kofi Annan’s plan had in any way changed the prevailing situation on the island regarding property issues, noting that bicommunal talks had nothing to do with individual rights covered by the European Convention on Human Rights (ECHR). The decision kept the road open for future Greek-Cypriot applications to the ECHR. Some Turkish newspapers interpreted the outcome as a signal for the ECHR to take on the TRNC Property Compensation Board with a view to exhausting the domestic remedies should some structural changes be made to it in the future. The second deliberation concerning the nature of the remedies claimable by the applicant took place in late 2006. Judgment at Strasbourg, 22 December 2005: Final, 22 March 2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. _________________________ In the case of Xenides-Arestis v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Mr G. Ress, President, Mr I. Cabral Barreto, Mr L. Caflisch, Mr R. Türmen, Mr J. Hedigan, Mr K. Traja, Mrs A. Gyulumyan, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 1 and 7 December 2005, delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 362. The case originated in an application (no. 46347/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Cypriot national, Mrs Myra Xenides-Arestis (‘the applicant’), on 4 November 1998. 363. The applicant was represented by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (‘the Government’) were represented by their Agent, Prof. Dr Z. Necatigil. 364. The applicant alleged a continuing violation of Article 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with 501

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365.

366. 367.

368. 369.

Article 14. In particular, she maintained that the Turkish military forces were preventing her from having access to, using and enjoying her home and property in the area of Famagusta, in northern Cyprus. She submitted that this was due to the fact that she was Orthodox and of GreekCypriot origin. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. A hearing on the admissibility of the application took place in the Human Rights Building, Strasbourg, on 2 September 2004. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1) but this case remained with the Chamber constituted within former Section III. By a decision of 14 March 2005 the Court declared the application admissible. The applicant and the Government each filed observations on the merits (Rule 59 § 1) and the Government sent comments on the applicant’s claims for just satisfaction. The Government of Cyprus, who had made use of their right to intervene under Article 36 of the Convention, did not submit any comments on the parties’ observations.

THE FACTS 370. The applicant, Mrs Myra Xenides-Arestis, is a Cypriot national of GreekCypriot origin, who was born in 1945 and lives in Nicosia. 371. The applicant owns property in the area of Ayios Memnon (Esperidon Street), in the fenced-up area of Famagusta, that she acquired by way of a gift from her mother. In particular, she owns half a share in a plot of land (plot no. 142, sheet/plan 33/29) with buildings thereon, consisting of one shop, one flat and three houses. One of the houses was her home, where she lived with her husband and children, whereas the rest of the property was used by members of the family and/or rented out to third parties. Furthermore, the applicant partly owns a plot of land (plot no. 158, sheet/plan 33/29) with an orchard (her share being equivalent to 5/48). This was registered in her name on 31 January 1984. The rest of the property is owned by other members of her family. 372. In August 1974 she was forced by the Turkish military forces to leave Famagusta with her family and abandon their home, property and possessions. Since then she has been prevented from having access to, using and enjoying her home and property, which are under the occupation and the control of the Turkish military forces. According to the applicant, only the Turkish military forces have access to the fenced-up area of Famagusta. 502

European Court of Human Rights 373. On 23 April 2003 new measures were adopted by the authorities of the ‘Turkish Republic of Northern Cyprus’ (‘TRNC’) regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. On 30 June 2003 the ‘Parliament of the TRNC’ enacted ‘Law no. 49/2003’ on compensation for immovable properties located within the boundaries of the ‘TRNC’, which entered into force on the same day. On 30 July 2003, under Article 11 of this ‘Law’, an ‘Immovable Property, Determination, Evaluation and Compensation Commission’ was established in the ‘TRNC’. The rules of the commission were published in the ‘TRNC Official Gazette’ on 15 August 2003 and the commission was constituted by a decision of the ‘TRNC Council of Ministers’ published in the aforementioned gazette on 18 August 2003. 374. On 24 April 2004 two separate referendums were held simultaneously in Cyprus on the Foundation Agreement–Settlement Plan (‘Annan Plan’) which had been finalised on 31 March 2004. Since the plan was approved in the Turkish-Cypriot referendum but not in the Greek-Cypriot referendum, the Foundation Agreement did not enter into force. THE LAW I. The Government’s preliminary objection 375. The Government in their submissions on the merits raised the same objection as at the admissibility stage concerning the victim status of the applicant. In particular, they maintained that the property allegedly owned by the applicant had been registered in the books of the Turkish Muslim religious trust (vakf) as having been dedicated to the religious trust in perpetuity in accordance with the relevant rules and principles and could not be transferred to individuals as private property. They noted that the applicant had not produced an authentic title deed showing registration of her name as recorded in the books of the Land Office but a document certifying that the properties in her name were ‘Turkish-held properties’. Turkey was not in possession or control of the Land Office records of the ‘TRNC’ and the Government therefore wished to reserve their position to finalise the information about the history of the title to the properties in question. 376. The Court notes that the Government’s objection was duly examined and dismissed in its admissibility decision of 14 March 2005 in which it found that the applicant could claim to be a ‘victim’ within the meaning of Article 34 of the Convention. In its decision, among other things, the Court pointed out that the respondent Government had not substantiated their arguments. The Government have not submitted any new information in this regard within the time allowed. The Court therefore sees no reason to depart from its findings in this respect.

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Part II: Cyprus–Europe Relations (1983–2006) II. Alleged violation of Article 8 of the convention 377. The applicant complained of an unjustified interference with the right to respect for her home, in violation of Article 8 of the Convention, which reads as follows: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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.’ 1. The parties’ submissions (a) The applicant 378. The applicant relied on the findings of the Court in its judgments in the cases of Loizidou v. Turkey ((preliminary objections), judgment of 23 March 1995, Series A no. 310), Loizidou v. Turkey ((merits), judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI), Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001-IV), Demades v. Turkey (no. 16219/90, § 46, 31 July 2003), and Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey (no. 16163/90, § 31, 31 July 2003). Furthermore, in her earlier observations on the admissibility of the application, she had distinguished her case from that of Loizidou v. Turkey (merits, cited above) in so far as Article 8 of the Convention was concerned, since her complaint related to an interference with her right to respect for the home in which she lived with her husband and children and of which she was the owner. This was irrespective of whether the area in which her home was situated was the same as that where she grew up and her family had its roots. (b) The Government 379. The Government did not make any submissions under this head on their observations on the merits of the case. In their earlier observations on the admissibility of the application, however, the Government had made limited submissions under this head. In particular, they disputed the applicant’s complaint under Article 8 of the Convention, on the basis that the notion of ‘home’ in Article 8 could not be interpreted to cover an area of the State where one had grown up and where the family had its roots but where one no longer lived (Loizidou (merits), cited above, p. 2238, § 66).

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European Court of Human Rights 2. The Court’s assessment 380. At the outset, the Court observes that the present case differs from the Loizidou case (merits, cited above) since, unlike Mrs Loizidou, the applicant actually had her home in Famagusta. 381. Further, the Court notes that since 1974 the applicant has been unable to gain access to, use and enjoy her home. In connection with this the Court observes that, in its judgment in the case of Cyprus v. Turkey (cited above, §§ 172–175), it concluded that the complete denial of the right of Greek-Cypriot displaced persons to respect for their homes in northern Cyprus since 1974 constituted a continuing violation of Article 8 of the Convention. The Court reasoned as follows: ‘172. The Court observes that the official policy of the ‘TRNC’ authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south. Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them. 173. The Court further notes that the situation impugned by the applicant Government has obtained since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in ‘legislation’ and is enforced as a matter of policy in furtherance of a bizonal arrangement designed, it is claimed, to minimise the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General … 174. The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 § 2 of the Convention …; secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing. 175. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.’ 382. In this connection the Court also reiterates its findings in the case of Demades v. Turkey (cited above, §§ 29–37). 383. The Court sees no reason in the instant case to depart from the above 505

Part II: Cyprus–Europe Relations (1983–2006) reasoning and findings. Accordingly, it concludes that there has been a continuing violation of Article 8 of the Convention by reason of the complete denial of the right of the applicant to respect for her home. III. Alleged violation of Article 1 of Protocol No. 1 384. The applicant contended that the continuous denial of access to her property in northern Cyprus and the ensuing loss of all control over it and all possibilities to use and enjoy it constituted a violation of Article 1 of Protocol No. 1, which reads as follows: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ 1. The parties’ submissions (a) The applicant 385. The applicant relied on the Court’s judgments in the cases of Loizidou (preliminary objections, cited above), Loizidou (merits, cited above), Cyprus v. Turkey (cited above), Demades (cited above, § 46) and Eugenia Michaelidou Developments Ltd and Michael Tymvios (cited above, § 31). (b) The Government 386. The Government limited their submissions under this head to contesting the applicant’s ownership of the property in question (see paragraph 14 above) and the status of Famagusta (Varosha), where the properties in question were situated. With regard to the latter, the Government stated that the Greek-Cypriot authorities had been responsible for the evacuation of Varosha and for rejecting proposals for and attempts at resettlement of the area. In this connection, they referred to the intercommunal talks concerning this area, various proposals and excerpts of statements made in that context. They submitted that it was not possible for Turkey unilaterally to open this area for settlement on an individual basis without agreed administrative arrangements and the setting up of funds for development and infrastructural projects designed to assist in the process of readjustment. The Government also considered that the Court at this stage in the proceedings and in the absence of a comprehensive and final settlement of the property issue should not proceed to determine the title over the properties in question. 506

European Court of Human Rights 387. In their earlier observations on the admissibility of the application, the Government had contended that the applicant’s complaint under Article 1 of Protocol No. 1 related in essence to freedom of movement, guaranteed under Article 2 of Protocol No. 4, which Turkey had not ratified. They therefore argued that the right to peaceful enjoyment of property and possessions did not include, as a corollary, the right to freedom of movement. 2. The Court’s assessment 388. At the outset, the Court observes that in its admissibility decision in the present case, in line with the cases of Loizidou (preliminary objections), Loizidou (merits) and Cyprus v. Turkey (all cited above), it dismissed the Government’s objections as to Turkey’s alleged lack of jurisdiction and responsibility for the acts in respect of which complaint was made. It further rejected the Government’s arguments concerning both freedom of movement and the effect which the Court’s consideration of the applicant’s claims could have on the inter-communal talks. It noted that no change had occurred since its adoption of the judgments in the above-mentioned cases which could justify a departure from its conclusions as to Turkey’s jurisdiction. In this connection, the Court also pointed out, inter alia, that the Government continued to exercise overall military control over northern Cyprus and that the fact that the Greek Cypriots had rejected the Annan Plan did not have the legal consequence of bringing to an end the continuing violation of the displaced persons’ rights. 389. The Court further reiterates that in accordance with its findings in the cases of Loizidou (preliminary objections), Loizidou (merits) and Cyprus v. Turkey (all cited above) the applicant must still be regarded as the legal owner of her land. In this connection it notes that it has dismissed the Government’s arguments concerning the applicant’s title to the relevant properties. 390. In the Loizidou case ((merits), cited above, pp. 2237–38, §§ 63–64) the Court reasoned as follows: ‘63. … as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1. Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred …, be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it clearly falls within the meaning of the 507

Part II: Cyprus–Europe Relations (1983–2006) first sentence of that provision as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment … 64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the ‘TRNC’ and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey. It has not, however, been explained how the need to rehouse displaced Turkish-Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial of access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.’ 391. In the case of Cyprus v. Turkey (cited above) the Court confirmed the above conclusions: ‘187. The Court is persuaded that both its reasoning and its conclusion in Loizidou (merits) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the ‘TRNC’ authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1. It further notes that, as regards the purported expropriation, no compensation has been paid to the displaced persons in respect of the interferences which they have suffered and continue to suffer in respect of their property rights. … 189. For the above reasons, the Court concludes that there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.’

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European Court of Human Rights 392. The Court in this connection reiterates its findings in the cases of Demades (cited above, §§ 43–46) and Eugenia Michaelidou Developments Ltd and Michael Tymvios (cited above, §§ 28–31). 393. In the light of the above the Court sees no reason in the instant case to depart from the conclusions which it reached in the above cases. Accordingly, it concludes that there has been and continues to be a violation of Article 1 of Protocol No. 1 by virtue of the fact that the applicant is denied access to and control, use and enjoyment of her property and any compensation for the interference with her property rights. IV. Alleged violation of Article 14 of the convention taken in conjunction with Article 8 of the convention and Article 1 of Protocol no. 1 394. The applicant maintained that she was the victim of discrimination in relation to the enjoyment of her rights in respect of her home and property, contrary to Article 14 of the Convention, which reads as follows: ‘The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ 395. The Government did not make any submissions under this head. 396. The Court notes that in the above-mentioned Cyprus v. Turkey case it found that, in the circumstances of that case, the Cypriot Government’s complaints under Article 14 amounted in effect to the same complaints, albeit seen from a different angle, as those considered in relation to Article 8 of the Convention and Article 1 of Protocol No. 1. Since it had found violations of those provisions, it considered that it was not necessary in that case to examine whether there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to the peaceful enjoyment of their possessions (see Cyprus v. Turkey, cited above, § 199). 397. The Court sees no reason in this case to depart from that approach. Bearing in mind its conclusion on the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, it finds that it is not necessary to carry out a separate examination of the complaint under Article 14 in conjunction with these provisions. V. Application of Article 46 of the convention 398. Article 46 of the Convention provides:

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Part II: Cyprus–Europe Relations (1983–2006) ‘1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.’ 399. It is inherent in the Court’s findings that the violation of the applicant’s rights guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1 originates in a widespread problem affecting large numbers of people, namely the unjustified hindrance of her ‘respect for her home’ and ‘peaceful enjoyment of her possessions’ as a matter of ‘TRNC’ policy or practice (see Cyprus v. Turkey, cited above, §§ 174 and 185). Moreover, the Court cannot ignore the fact that there are already approximately 1400 property cases pending before it brought primarily by Greek Cypriots against Turkey. 400. Before examining the applicant’s individual claims for just satisfaction under Article 41 of the Convention and in view of the circumstances of the instant case, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention. It reiterates that by virtue of Article 46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000–VIII, and Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004–V). 401. The Court considers that the respondent State must introduce a remedy that secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005. Such a remedy should be available within three months from the date on which the present judgment is delivered and redress should be afforded three months thereafter. 510

European Court of Human Rights VI. Application of Article 41 of the convention 402. Article 41 of the Convention provides: ‘If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.’ A. Pecuniary and non-pecuniary damage 1. The parties’ submissions (a) The applicant 403. The applicant stressed that she did not claim compensation for any purported expropriation of her property since she was still the legal owner of the property and no issue of expropriation arose. Her claim was thus confined to the loss of use of the land and the consequent lost opportunity to lease or rent it. Relying on two valuation reports assessing the value of her property and the return that could be expected from it, she claimed 587,399 Cyprus pounds (CYP) by way of pecuniary damage concerning the period between 28 January 1987, the date of the acceptance by Turkey of the compulsory jurisdiction of the Court, and the end of 2005. 404. The method employed in the valuation reports was the comparison method of valuation in conjunction with the cost-of-construction method for the first property and the comparison method of valuation for the second: the estimation of the annual rent value was derived as a percentage of the capital value of the property. The market price of the property was calculated as it had stood in 1974 and increased by approximately 5.5% per year with regard to the first property and 10% per year with regard to the second, in order to calculate the value that the property would have had if Famagusta had not been occupied by the Turkish army. It was emphasised that the area of Famagusta was, among other things, one of the most popular tourist resorts and could reasonably be expected to have enjoyed increases in rent higher than the average of the unoccupied areas had the invasion not taken place. 405. The total sum claimed by way of pecuniary damage represented the aggregate amount of ground rent that could have been collected from 22 January 1987 until 31 December 2005, calculated as 5% for the first property and 6% for the second of the estimated market value of the properties for each of the years in question, plus interest from the date on which such rent was due until the date of payment. For that period, therefore, the sum with regard to the first property amounted to CYP 190,288 and for the second CYP 245,564. Both amounts claimed included interest on the rent at a rate of 8% from 1987 up to the end of 511

Part II: Cyprus–Europe Relations (1983–2006) 2000 and 6% from 2001 until the end of 2005. The examination of the trends in rent increases was made on the basis of the Consumer Price Index 1960–2005 in respect of Rents and Housing, issued by the Department of Statistics and Research of the Government of Cyprus. 406. The applicant claimed CYP 160,000 in respect of non-pecuniary damage. In particular, she firstly claimed CYP 40,000 for the anguish and frustration she had suffered on account of the continuing violation of her property rights under Article 1 of Protocol No. 1 from January 1987 until the end of 2005. The applicant stated that this sum was calculated on the basis of the sum awarded by the Court in the Loizidou case ((Article 50), judgment of 28 July 1998, Reports 1998–IV) by way of compensation for non-pecuniary damage, taking into account, however, that the period of time for which the award was claimed in the instant case, was longer than that claimed in the Loizidou case. Further she claimed CYP 120,000 for the distress and suffering resulting from the denial of her home and in view of the deliberate policy of the Government, who through the use of, inter alia, their army were holding the fenced-up city of Famagusta hostage to their political wishes. She considered this to be more serious than the violation of her property rights under Article 1 of Protocol No. 1. (b) The Government 407. The Government contested the applicant’s claims under this head and maintained that they were based on evaluations that were absolutely speculative and imaginary, without reference to any real data with which to make comparison. They noted that inadequate allowance had been made in respect of the instability of the property market and its susceptibility to both domestic and international influences. The method of assessment adopted by the applicant presupposed that the property would increase in value, that it could fetch the rent that the applicant had actually sought, or that she would have leased her house in normal conditions. No examples of comparative sales and rents in the area had been supplied. The calculations were based on the assumption that at the material time there had been development potential in the area where the property was situated. The assumption that the property market would have continued to flourish with sustained growth during the material time was highly questionable. In the Government’s view the Court should not accept the percentage increases put forward by the applicant. To claim damages now for loss of use on the basis of the rent that the property could have fetched if it had been leased would mean enrichment on an inequitable basis. Nor had allowance been made for tax and other expenses which would have accrued. 408. Further, the Government noted that in view of the fact that Turkey’s declaration under former Article 46 of the Convention recognising the Court’s jurisdiction had been made on 21 January 1990, the applicant’s 512

European Court of Human Rights claim for pecuniary loss could not be calculated from 1 January 1987. In this connection, they averred that if compensation were to be awarded, any loss suffered by the applicant after March 2004 was due to the actions of the Greek-Cypriot Government. 409. The Government considered that the Court at this stage in the proceedings, and in the absence of a comprehensive and final settlement of the property issue, should not proceed to determine the title over the properties or award compensation without, at least, allowing the ‘TRNC’ authorities time and an opportunity to consider their Compensation Law in the light of its decision on the admissibility of the instant case. Further, the award of compensation to individual applicants such as the present one would seriously hamper and prejudice negotiations for an overall political settlement, including the complex property issue which it was hoped would be solved by diplomatic means. There was also the question of what an appropriate remedy in cases of this nature would be where a significant period of time had elapsed and legitimate third-party and community interests were involved. There was no entitlement to an award. If the Court nevertheless found that the applicant had title to the properties in question, contrary to the Government’s submissions, the Court should exercise its margin of appreciation and discretion in view of the circumstances of the present application and such an award should not be held to be ‘necessary’ at the present stage of the proceedings. 410. Finally, the Government did not comment on the applicant’s submissions under the head of non-pecuniary damage. 2. The Court’s assessment 411. In the circumstances of the case, the Court finds that the question of compensation for pecuniary and non-pecuniary damage is not ready for consideration. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1 of the Rules of Court) and in the light of such individual or general measures as may be taken by the respondent Government in execution of the present judgment. Pending the implementation of the relevant general measures, which should be adopted as provided for in paragraph 40 above, the Court will adjourn its consideration of all applications deriving from the same general cause. B. Costs and expenses 1. The parties’ submissions (a) The applicant 412. The applicant, who had submitted detailed bills of costs in connection with the different stages of the proceedings before the Court, claimed 513

Part II: Cyprus–Europe Relations (1983–2006) CYP 131,867.97 by way of costs and expenses. Her claim was composed of the following items: (a) CYP 41,285, inclusive of value-added tax, concerning the fees of the applicant’s Cypriot lawyers, covering the preparation of the application, observations and correspondence; (b) CYP 13,526.97, inclusive of value-added tax, as out-of-pocket expenses incurred from 1 November 2003 until April 2005. These included mainly communication costs (faxes, telephone bills, mail), fees for help given by EMS Economic Management Ltd, fees for the two valuation reports appended to the applicant’s submissions for just satisfaction, expenses for research relating to published articles and the expenses incurred in connection with the hearing of 2 September 2004; (c) CYP 77,056 concerning the fees for the services of a Queen’s Counsel, Mr I. Brownlie, which included preparation of the applicant’s additional observations, written advice on matters of international law, meetings and, finally, travel expenses and preparation for the hearing. 413. The applicant also claimed interest at the rate of 8% per annum on the above amounts. 414. The applicant submitted that because of the designation of the case as a pilot case involving a hearing before the Court, and the important legal issues relating to international law, most of which were novel, it was justified to have recourse to the services of a Queen’s Counsel. (b) The Government 415. The Government did not comment on the applicant’s submissions under this head. 2. The Court’s assessment 416. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see, for example, Stašaitis v. Lithuania, no. 47679/99, §§ 102–103, 21 March 2002). 417. The Court notes that the present case raised complex issues of fundamental importance at the admissibility stage that involved the submission of extensive observations and an oral hearing. 418. Notwithstanding the above, and although the Court does not doubt that the fees claimed were actually incurred, they appear to be excessive. In this regard it observes that the merits stage involved no particular complexity and the applicant’s observations under this head were brief and primarily focused on her just satisfaction claim. Furthermore, no reference is made in the bills of costs to the rates of the lawyers involved, 514

European Court of Human Rights including those of the Queen’s Counsel, and no indication is given of the time spent. In addition, no details have been provided with regard to the help given by EMS Economic Management Ltd. Finally, the Court also considers excessive the applicant’s claim for reimbursement of expenses for research relating to published articles. 419. Accordingly, regard being had to the information in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 65,000 for costs and expenses in respect of the proceedings before it. C. Default interest 420. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government’s preliminary objection; 2. Holds by six votes to one that there has been a violation of Article 8 of the Convention; 3. Holds by six votes to one that there has been a violation of Article 1 of Protocol No. 1; 4. Holds unanimously that it is not necessary to examine the applicant’s complaint under Article 14 of the Convention in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1; 5. Holds unanimously that the respondent State must introduce a remedy which secures the effective protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 in relation to the present applicant as well as in respect of all similar applications pending before the Court. Such a remedy should be available within three months from the date on which the present judgment is delivered and redress should be afforded three months thereafter; 6. Holds unanimously that as far as any pecuniary and non-pecuniary damage is concerned, the question of the application of Article 41 of the Convention is not ready for decision; and accordingly, (a) reserves the said question; (b) invites the parties to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) with reference to point 5 above, invites the Government to submit, within three months from the date on which the judgment is delivered, details of 515

Part II: Cyprus–Europe Relations (1983–2006) the remedy and its availability and to submit information concerning the redress three months thereafter; (d) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be; 7. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, €65,000 (sixty-five thousand euros) in respect of costs and expenses, to be converted into Cyprus pounds at the applicable rate at the date of settlement, plus any tax that may be chargeable on the above amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 22 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent Berger Registrar

Georg Ress President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Türmen is annexed to this judgment. G.R. V.B. DISSENTING OPINION OF JUDGE TÜRMEN I disagree with the majority concerning the violations of Article 8 of the Convention and Article 1 of Protocol No. 1 for the reasons contained in the separate dissenting opinions of Judge Bernhardt joined by Judge Lopes Rocha and of Judges Baka, Jambrek, Pettiti and Gölcüklü in the Loizidou v. Turkey (merits) judgment of 18 December 1996. Last minute addition: At a hearing held on 7 December 2006, the Court delivered the following judgment on the remedies issue. The most important paragraph reads as follows: 37. The Court welcomes the steps taken by the Government [of Turkey] in an effort to provide redress for the violations of the applicant’s Convention rights as well in respect of all similar applications pending 516

European Court of Human Rights before it. The Court notes that the new compensation and restitution mechanism [set up in North Cyprus], in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005. The Court points out that the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski v. Poland (friendly settlement and just satisfaction) ([GC] no. 31443/96, ECHR 2005 …), it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail. The Court cannot accept the Government’s argument that the applicant should now be required at this stage of the proceedings where the Court has already decided on the merits [emphasis added by editor] to apply to the new Commission in order to seek reparation for her damages (Doğan and Others v. Turkey (just satisfaction), nos. 8803–8811/02, 8813/02 and 8815 8819/02, § 50, 13 July 2006).

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THE EUROPEAN COURT OF JUSTICE _________________________________________________________

51. The United Kingdom’s trade with north Cyprus challenged: judgment of the Court of Justice of the European Communities, 5 July 1994 (EEC–Cyprus Association Agreement – Directive 77/93/EEC – Non-recognition of movement and phytosanitary certificates from the part of Cyprus to the north of the United Nations Buffer Zone) In Case C–432/92, REFERENCE to the Court under Article 177 of the EEC Treaty by the High Court of Justice (Queen’s Bench Division) for a preliminary ruling in the proceedings pending before that court between The Queen and Minister of Agriculture, Fisheries and Food, ex parte S. P. Anastasiou (Pissouri) Ltd and Others Interveners: Cypfruvex (UK) Ltd Cyprus Fruit and Vegetable Enterprises Ltd (Cypfruvex), on the interpretation of the Agreement of 19 December 1972 establishing an Association between the European Economic Community and the Republic of Cyprus,

519

Part II: Cyprus–Europe Relations (1983–2006) annexed to Council Regulation (EEC) No. 1246/73 of 14 May 1973 (OJ 1973 L 133, p. 1), and Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products (OJ 1977 L 126, p. 20), THE COURT, composed of: O. Due, President, G. F. Mancini, J. C. Moitinho de Almeida, M. Diez de Velasco (Rapporteur) and D. A. O. Edward (Presidents of Chambers), C. N. Kakouris, R. Joliet, F. A. Schockweiler, G. C. Rodriguez Iglesias, F. Grévisse, M. Zuleeg, P. J. G. Kapteyn and J. L. Murray, Judges, Advocate General: C. Gulmann, Registrar: L. Hewlett, Administrator, after considering the written observations submitted on behalf of: • • •

•

S. P. Anastasiou (Pissouri) Ltd and Others, by D. Vaughan QC, and M. Clough, Barrister, instructed by Allen & Overy, Solicitors, the United Kingdom, by J. E. Collins of the Treasury Solicitor’s Department, acting as Agent, and P. M. Roth, Barrister, the Greek Government, by D. Raptis, State Legal Adviser, V. Kondolaimos, Member of the State Legal Service, and I. Khalkias, Representative of the State Legal Service in judicial proceedings, acting as Agents, the Commission of the European Communities, by P. J. Kuijper, Legal Adviser, and P. Hetsch, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing, after hearing the oral observations of S. P. Anastasiou (Pissouri) Ltd and Others, represented by D. Vaughan QC, and M. Clough, Barrister, of Cypfruvex (UK) Ltd and Cyprus Fruit and Vegetable Enterprises Ltd (Cypfruvex), represented by D. Janney, Solicitor, and P. Watson, Barrister, of the United Kingdom, represented by J. E. Collins, S. Richards and P. M. Roth, Barristers, of the Greek Government, represented by V. Kondolaimos, assisted by Professor C. Rozakis, of the Irish Government, represented by A. Aston, Barrister-at-Law, and of the Commission, represented by P. J. Kuijper, Legal Adviser, and P. Hetsch, of its Legal Service, at the hearing on 2 March 1994, after hearing the Opinion of the Advocate General at the sitting on 20 April 1994, gives the following Judgment

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European Court of Justice 1. By order of 2 December 1992, received at the Court on 24 December 1992, the High Court of Justice (Queen’s Bench Division) referred to the Court for a preliminary ruling, under Article 177 of the EEC Treaty five questions on the interpretation of the Agreement of 19 December 1972 establishing an Association between the European Economic Community and the Republic of Cyprus, annexed to Council Regulation (EEC) No. 1246/73 of 14 May 1973 (hereinafter ‘the Association Agreement’), and Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products. 2. The questions were raised in proceedings brought by producers and exporters of citrus fruit established in the part of Cyprus to the south of the United Nations Buffer Zone and the national marketing board for potatoes in Cyprus against the Ministry of Agriculture, Fisheries and Food, in connection with the importation into the United Kingdom of citrus fruit and potatoes from the part of Cyprus to the north of that zone (hereinafter ‘the northern part of Cyprus’). 3. Trade in citrus fruit and potatoes between the Republic of Cyprus and the Community is governed by the Association Agreement and the protocols thereto, as amended or replaced. 4. Article 3 (3) of the Association Agreement provides that: ‘The Contracting Parties shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Agreement. They shall refrain from any measure likely to jeopardize the achievement of the aims of the Agreement.’ 5. Under Article 5 of the Association Agreement: ‘The rules governing trade between the Contracting Parties may not give rise to any discrimination between … nationals or companies of Cyprus.’ 6. Citrus fruit and potatoes originating from Cyprus benefit from preferential arrangements under the Association Agreement and the protocols thereto. Under Article 7 of the Agreement, the rules of origin to be applied are those set forth in the Protocol. The protocol currently applicable is that of 1977 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation (hereinafter ‘the 1977 Protocol’), which was annexed to the Additional Protocol to the Agreement establishing an Association between the European Economic Community and the Republic of Cyprus, itself annexed to Council Regulation (EEC) No. 2907/77 of 20 December 1977 (OJ 1977 L 339, p. 1). 521

Part II: Cyprus–Europe Relations (1983–2006) 7. Article 6 (1) of the 1977 Protocol states that evidence of the originating status of products is given by movement certificate EUR.1. Articles 7 (1) and 8 (1) of the 1977 Protocol specify that the movement certificate is to be issued by the customs authorities of the exporting State. Article 8 (3) provides in particular that it is the responsibility of the customs of the exporting State to ensure that the forms referred to in Article 9 (movement certificates, specimens of which are given in Annex V to the 1977 Protocol) are duly completed. 8. Under Article 24 of the 1977 Protocol, subsequent verification of EUR.1 movement certificates is to be carried out at random or whenever the customs authorities of the importing State have reasonable doubt as to the authenticity of the document or the accuracy of the information regarding the true origin of the goods in question. For that purpose the customs authorities of the importing State are to return the movement certificate, or a photocopy hereof, to the customs authorities of the exporting State, giving the reasons of form or substance for an inquiry. The customs authorities of the importing State are to be informed of the results of the verification as quickly as possible. The results must be such as to make it possible to determine whether the disputed certificate applies to the goods actually exported, and whether these goods can in fact qualify for the application of the preferential arrangements. Disputes between customs authorities that cannot be settled or raise a question as to the interpretation of the Protocol are to be submitted to the Customs Cooperation Committee established under the Association Agreement. 9. Directive 77/93, cited above, lays down rules governing the issue of phytosanitary certificates. Article 12(1)(b) of that directive, as amended by Council Directives 80/392/EEC of 18 March 1980 (OJ 1980 L 100, p. 32) and 85/574/EEC of 19 December 1985 (OJ 1985 L 372, p.25), requires the certificates to be issued by authorities empowered for that purpose under the International Plant Protection Convention, or, in the case of non-contracting countries, such as the Republic of Cyprus, on the basis of the laws or regulations of that country. Citrus fruit and potato tubers are among the products listed in Annex V which, under Article 12, must be accompanied by a phytosanitary certificate upon importation. 10. On 24 October 1991 the applicants in the main proceedings wrote to the Minister, the respondent in the main proceedings, seeking confirmation that the competent UK authorities would no longer allow the importation of citrus products or potatoes produced in Cyprus into the United Kingdom without the appropriate movement or phytosanitary certificates issued by the authorities of the Republic of Cyprus. 11. By letter dated 3 December 1991, the respondent replied that the United Kingdom did not accept documentation referring to the ‘Turkish Republic of Northern Cyprus’ (hereinafter ‘the TRNC’) and that it 522

European Court of Justice permitted the entry of citrus products and potatoes from Cyprus in accordance with the relevant Community legislation. The applicants sought further clarification, whereupon the Ministry of Agriculture, Fisheries and Food replied, in a letter of 24 March 1992, that, as far as the UK authorities were aware, any imports which might have entered the Community from the northern part of Cyprus would have done so in accordance with the Community requirements. 12. The applicants then applied to the High Court of Justice, Queen’s Bench Division, for judicial review of the respondent’s decision contained in the letters referred to above and of the UK authorities’ practice of allowing imports into the United Kingdom without the necessary documentation issued by the competent authorities of the Republic of Cyprus. 13. It is apparent from the order for reference that the following facts are not disputed by the parties: (a) the Republic of Cyprus is a sovereign State, recognized by all the Member States of the European Community. Its Constitution was adopted in 1960 and its territory comprises the whole of the island of Cyprus, apart from the sovereign base areas. (b) The United Kingdom and the other Member States do not recognized a ‘Turkish Republic of Northern Cyprus’. (c) There has been a UN buffer zone across the island of Cyprus since 1974. Almost the entire Turkish-Cypriot community resides to the north of that buffer zone. Significant volumes of citrus products and potatoes are imported into the United Kingdom from that part of Cyprus. (d) None of the movement or phytosanitary certificates that accompany citrus products or potatoes imported into the United Kingdom from the northern part of Cyprus are issued by the authorities of the Republic of Cyprus. (e) The UK Customs and Excise, which is responsible for checking movement certificates concerning imported goods, have refused to accept certificates issued by, or bearing a customs stamp referring to, the TRNC. They have continued to accept movement certificates accompanying goods exported from the northern part of Cyprus which bear a stamp in the name of the ‘Cyprus Customs Authorities’ but do not originate from the authorities of the Republic of Cyprus. (f) Similarly, the UK authorities do not accept phytosanitary certificates issued in the name of the TRNC. They do accept phytosanitary certificates issued in the northern part of Cyprus accompanying products consigned by exporters from that part. Some of those certificates have been issued in the name of the ‘Republic of Cyprus – Turkish Federated State of Cyprus’. In practice, since 1991 at least, all phytosanitary certificates for produce exported from the northern part of Cyprus have been issued only in the name of the ‘Republic of Cyprus’ – Ministry of Agriculture’. 523

Part II: Cyprus–Europe Relations (1983–2006) 14. Taking the view that the dispute involved the interpretation of Community law, the national court decided, by order of 2 December 1992, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘Having regard, in particular to: i

the 1972 Agreement establishing an association between the European Economic Community and the Republic of Cyprus, the 1977 Protocol on the definition of the concept of ‘originating’ products and methods of administrative cooperation and the 1987 Protocol laying down the conditions and procedures for the implementation of the second stage of the 1972 Agreement and adapting certain provisions of the 1972 Agreement, and ii the provisions of Council Directive 77/93/EEC on protective measures against the introduction into the Member States of organisms harmful to plants or plant products, as amended: 1. Where the importation into a Member State of citrus products or potatoes from Cyprus is accompanied by EUR.1 movement certificates issued by the Turkish community in the part of Cyprus to the north of the UN buffer zone and not by officials authorized by the Republic of Cyprus, does Community law: (a) preclude the member State from permitting that importation? (b) require the Member State to accept those certificates? 2. Where the importation into a Member State of citrus products (other than lemons) and potatoes from Cyprus is accompanied by phytosanitary certificates issued by the Turkish community in the part of Cyprus to the north of the UN buffer zone and not by officials duly authorized by the Republic of Cyprus, does Community law: (a) preclude the Member State from permitting that importation? (b) require the Member State to accept those certificates? 3. Would it make any difference to the answers to 1 or 2 above if: (a) it were in practice impossible for exporters from the part of Cyprus to the north of the UN buffer zone to obtain certification for their products from the Republic of Cyprus? (b) there were a significant impediment to exporters from the part of Cyprus to the north of the UN buffer zone exporting their products through the part of Cyprus under the effective control of the Government of the Republic of Cyprus? (c) the procedures for the issue and verification of such certificates in the part of Cyprus to the north of the UN buffer zone were as dependable as the procedures in the part of Cyprus under the effective control of the Government of the Republic of Cyprus. 524

European Court of Justice 4. Would it make any difference to the answer to Question 2 above if the experience from checks in the Member State were to show no distinction between the standard of plant health of such products imported from the part of Cyprus to the north of the UN buffer zone and from the part of Cyprus under the effective control of the Republic of Cyprus? 5. Is it relevant to the answers to Questions 3(a) or (b) above to determine whether or to what extent any impossibility or impediment was caused by the Turkish community in the part of Cyprus to the north of the UN buffer zone and/or by the Republic of Cyprus, and if so what difference does this make?’ 15. The essence of these questions, which can best be considered together, is whether the Association Agreement and Directive 77/93 should be interpreted as precluding acceptance by the national authorities of a Member State, when citrus fruit or potatoes are imported from the northern part of Cyprus, of movement and phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus, or conversely, as requiring acceptance of such certificates, and whether the answer would be different if certain circumstances connected with the special situation of the island of Cyprus were taken as established. 16. The questions referred to the Court concern two types of certificate required when citrus fruit or potatoes originating from Cyprus are imported into the Community: • •

movement certificates required as evidence of the originating status of products within the meaning of the 1977 Protocol; phytosanitary certificates required pursuant to Directive 77/93.

17. According to the applicants in the main proceedings and the Greek Government, the practice whereby national authorities accept certificates issued by the Turkish community in the northern part of Cyprus and not by officials duly authorized by the Republic of Cyprus is unlawful. That practice is in breach of the obligations imposed by Articles 6 (1), 7 (1), 8 (1) and (3) and 9 of the 1977 Protocol with regard to movement certificates and by Article 12 (1) (b) of Directive 77/93 with regard to phytosanitary certificates. 18. With regard more specifically to movement certificates, the applicants in the main proceedings and the Greek Government claim that under the express provisions of the 1977 Protocol only certificates issued by the customs authorities of the Republic of Cyprus can attest to originating status as products of Cyprus. 19. The United Kingdom and the Commission do not dispute that in normal

525

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20.

21.

22. 23.

24.

25.

26.

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circumstances the practice in question should be regarded as incompatible with Community law. They maintain, however, that, in view of the special situation of Cyprus, the 1977 Protocol and Directive 77/93 should be interpreted to the effect that the authorities of the Member States are bound, with regard to products from the northern part of Cyprus, to accept certificates issued by the entity established in that part of the island and not by officials authorized by the Republic of Cyprus, in order to prevent discrimination between nationals or companies of Cyprus. They argue that on the facts it must be taken as established that it is practically impossible or at least very difficult for exporters from the northern part of Cyprus to obtain for the products which they export certificates other than those issued by the Turkish community in that part of the island. They add that the procedures for checking the origin of the goods and the standard of plant health in practice provide all the necessary guarantees. They also state that the provisions of the 1977 Protocol relied on by the applicants in the main proceedings do not have direct effect. According to the United Kingdom, their purpose is to establish an administrative system for verifying the origin of products and effective administrative cooperation between the authorities of the exporting State and those of the importing State. In the light of their wording and context, those provisions should not be regarded as directly effective in proceedings before the national courts. Since the question whether the relevant provisions of the 1977 Protocol have direct effect has been raised, it should be examined at the outset. As the Court has consistently held, a provision in an agreement concluded by the Community with non-member countries must be regarded as having direct effect when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see in particular the judgment in Case 12/86 Demirel (1987) ECR 3719, at paragraph 14). The aim of the Association Agreement is the progressive elimination of obstacles to trade between the Community and Cyprus. Under the Agreement, certain specific products originating in Cyprus are to benefit from preferential tariffs when imported into the Community. The relevant rules in the 1977 Protocol concerning the origin of products play an essential role in determining which products can be covered by the Agreement and thus benefit from preferential treatment. In that regard they lay down clear, precise and unconditional obligations. Furthermore, the Court has already taken the view by implication in its judgments in Case 218/83 Les Rapides Savoyards and Others (1984) ECR 3105 and in Case 12/92 Huygen and Others (1993) ECR I–6381 that

European Court of Justice

27. 28.

29.

30.

31.

32.

provisions concerning movement certificates appearing in trade agreements concluded by the Community with non-member countries, similar to the provisions at issue in the main proceedings, may be applied by the national courts. It follows that the relevant provisions in the 1977 Protocol have direct effect and may be relied upon in proceedings before a national court. The next question to be examined must therefore be whether those provisions preclude acceptance by the national authorities of a Member state, upon importation of citrus fruit or potatoes from the northern part of Cyprus, of movement certificates issued by authorities other than those of the Republic of Cyprus. The preferential arrangement established by the Association Agreement applies to products from Cyprus in so far as they are accompanied by a movement certificate attesting to their Cypriot origin (Article 6 (1) of the 1977 Protocol). That certificate is issued by the customs authorities of the exporting State when the goods to which it relates are exported if they can be considered ‘originating products’ within the meaning of the 1977 Protocol (Articles 7 (1) and 8 (1)). The Republic of Cyprus and the Community are to assist each other through their respective customs administrations in checking the authenticity of those certificates (Article 22 of the 1977 Protocol). The customs authorities of the importing State may decide that subsequent verification of the certificate is necessary if they entertain doubts as to the authenticity of the document or the accuracy of the information contained in them, and they are to be informed of the results of such verification by the exporting State; if disputes cannot be settled between the customs authorities of the two States, or if they raise a question as to the interpretation of the Protocol, they are to be submitted to the Customs Cooperation Council (Article 24 of the 1977 Protocol). According to the applicants in the main proceedings and the Greek Government, it follows from the precise and unconditional terms of the foregoing provisions as to evidence of and checks on the originating status of products that only the customs authorities of the Republic of Cyprus are competent to issue movement certificates and to ensure administrative cooperation with the customs authorities of the importing State. Consequently, those provisions preclude acceptance of certificates issued by other authorities. The United Kingdom and the Commission contend, however, that the provisions in question, interpreted in the light of Article 5 of the Association Agreement and having regard to the special situation of the island, allow a Member State to accept certificates issued by the Turkish community in the northern part of Cyprus. They point out that the Association Agreement applies to the entire territory of Cyprus apart from the Sovereign Base Areas but including the 527

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33.

34.

35.

36. 37.

38.

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northern part of Cyprus, and that its overall object is the progressive elimination of obstacles to trade between the Community and Cyprus. That trade arrangement may not, they maintain, in terms of Article 5 of the Agreement, give rise to any discrimination between nationals or companies of Cyprus, so as to ensure that the commercial benefits stemming from the Agreement benefit the entire population of Cyprus. In those circumstances, if the preferential arrangement were allowed for products from the southern part of Cyprus but not for products from the northern part, there would, in their views, be discrimination contrary to Article 5. The position would be the same if there was a significant impediment to Cypriots living in the northern part of Cyprus in obtaining the necessary certificates that did not apply to Cypriots living in the southern part. Given the special situation of Cyprus, the United Kingdom and the Commission maintain that de facto acceptance of the certificates in question issued by authorities other than the competent authorities of the Republic of Cyprus is certainly not tantamount to recognition of the TRNC as a State, but represents the necessary and justifiable corollary of the need to take the interests of the whole population of Cyprus into account. According to the Commission, that approach is clearly in line with the interpretation given by the International Court of Justice in its Advisory Opinion on Namibia (Opinion on the legal consequences for States of the continued presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (ICJ Reports 1971, p. 16); in its view, a policy of non-recognition should not result in depriving the people of Cyprus of any advantages conferred by treaty. The same approach, the Commission maintains, has been followed by the Council and the Commission in interpreting and applying the Association Agreement itself and the financial protocols. The argument propounded by the United Kingdom and the Commission cannot be accepted. While the de facto partition of the territory of Cyprus, as a result of the intervention of the Turkish armed forces in 1974, into a zone where the authorities of the Republic of Cyprus continue fully to exercise their powers and a zone where they cannot in fact do so raises problems that are difficult to resolve in connection with the application of the Association Agreement to the whole of Cyprus that does not warrant a departure from the clear, precise and unconditional provisions of the 1977 Protocol on the origin of products and administrative cooperation. The system whereby movement certificates are regarded as evidence of the origin of products is founded on the principle of mutual reliance and cooperation between the competent authorities of the exporting State and those of the importing State (Les Rapides Savoyards and Others and Huygen and Others, cited above).

European Court of Justice 39. Acceptance of certificates by the customs authorities of the importing State reflects their total confidence in the system of checking the origin of products as implemented by the competent authorities of the exporting State. It also shows that the importing State is in no doubt that subsequent verification, consultation and settlement of any disputes in respect of the origin of products or the existence of fraud will be carried out efficiently with the cooperation of the authorities concerned. 40. A system of that kind cannot therefore function properly unless the procedures for administrative cooperation are strictly complied with. However, such cooperation is excluded with the authorities of an entity such as that established in the northern part of Cyprus, which is recognized neither by the Community nor by the Member States; the only Cypriot State they recognize is the Republic of Cyprus. 41. In those circumstances, the acceptance of movement certificates not issued by the Republic of Cyprus would constitute, in the absence of any possibility of checks or cooperation, a denial of the very object and purpose of the system established by the 1977 Protocol. 42. That finding can be invalidated neither by the principle that the Association Agreement must apply, according to the terms of Article 5, in a non-discriminatory manner to the whole population of Cyprus, nor by the practice of the Commission which, prompted by the desire to uphold that principle, is said to have sent to the Member States specimen stamps and authorized signatures, as used by the Turkish community in the northern part of Cyprus when drawing up the certificates in question and accepted by certain Member States. 43. Although, in accordance with the rules on the interpretation of treaties (see Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, hereinafter ‘the Vienna Convention’), substantial importance properly attaches to the object and purpose of a treaty and to any subsequent practice in its application, it is important to note that Article 5 of the Association Agreement reflects only one of its objectives and must be reconciled with the other general aims of the Agreement and with the actual provisions interpreted, particularly since the relevant provisions of the 1977 Protocol do not constitute mere administrative arrangements but provisions necessary for the proper operation of the trade arrangements provided for in the Association Agreement. 44. In that context, the prohibition on discrimination between nationals or companies of Cyprus imposed by Article 5 of the Association Agreement cannot lead to a departure from the fundamental rules of that Agreement which determine its operation in the manner intended by the Contracting Parties. Efforts undertaken to enable the population of Cyprus to benefit from the advantages of the Association Agreement must be pursued, as the Advocate General properly emphasized in paragraph 53 of his Opinion, within the framework of the Agreement 529

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45.

46.

47.

48.

49.

50.

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and with all due consideration for the legitimate interests of the other Contracting Party. In that connection, the file shows that the advantages stemming from the Association Agreement have on several occasions been accessible to the whole population of Cyprus. Thus the financial protocols concluded pursuant to the Agreement are administered in such a way that the resources made available by the Community are used for purposes that are equally for the benefit of the population established in the northern part of Cyprus. That appears to be the case, for instance, of funds for financing the implementation of projects relating to the unified town planning scheme for Nicosia and the Nicosia sewerage scheme, part of which extends into the territory of the northern part of Cyprus. It is also significant that, since Article 5 appears in an international Agreement, the Community must take particular account of its partner to the Agreement when interpreting and applying it. On that point, it follows from the contractual obligation of the Community to refrain from jeopardizing the achievement of the aims of the Agreement (Article 3 of the Association Agreement) that no means of proof of the origin of products other than that expressly provided for in the 1977 Protocol may be unilaterally adopted by the Community. Any alternative means of proof must be discussed and decided upon by the Community and the Republic of Cyprus within the framework of the institutions established pursuant to the Association Agreement, and then applied in a uniform manner by the two Contracting Parties. Article 5 cannot in any event confer on the Community the right to interfere in the internal affairs of Cyprus. The problems resulting from the de facto partition of the island must be resolved exclusively by the Republic of Cyprus, which alone is internationally recognized. Moreover, it is clear from the file that the Community has not so far alleged that the events that took place on the island of Cyprus prevent the proper operation of the Agreement, nor has it contended that the Republic of Cyprus has infringed the provisions of the Association Agreement by discriminating against Turkish exporters established in the northern part of Cyprus. In addition, as regards the interpretation which the Commission draws from the Advisory Opinion of the International Court of Justice on Namibia, cited above, and which is said to have influenced its application of the Association Agreement, suffice it to say, as the Advocate General rightly noted at paragraphs 57 to 59 of his Opinion, that the special situation of Namibia and that of Cyprus are not comparable from either the legal or the factual point of view. Consequently no interpretation can be based on an analogy between them. Furthermore, the practice followed in applying the Agreement after the material events took place does not suffice to establish unequivocally,

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51.

52.

53.

54.

55.

56.

57.

58.

within the meaning of Article 31 of the Vienna Convention, the existence of an agreement between the parties regarding the interpretation of the relevant provisions of the 1977 Protocol. The official position of the Republic of Cyprus set out in a speaking note addressed to the Commission in 1983, in which it was specified that only products accompanied by movement certificates issued by the official Government and exported from sea or airports under its control satisfied the conditions of the Association Agreement, clearly stands in contrast to the Commission’s practice. Moreover, as is clear from the file, the practice followed after the material events reflects the absence of a uniform approach on the part of the Member States. Although some Member States have accepted certificates issued by authorities other than those of the Republic of Cyprus, others have not. The existence of different practices among the Member States thus creates uncertainty of a kind likely to undermine the existence of a common commercial policy and the performance by the Community of its obligations under the Association Agreement. That being so, the relevant rules of the 1977 Protocol must be interpreted strictly, in order to ensure uniform application of the Association Agreement in all the Member States. It follows that the phrase ‘the customs authorities of the exporting State’ in Articles 7 (1) and 8 (1) of the Protocol must be understood as referring exclusively to the competent authorities of the Republic of Cyprus when exports to the Community are involved. The Association Agreement therefore precludes acceptance by the competent authorities of a Member State, upon importation of citrus fruit or potatoes from Cyprus, of movement certificates issued by authorities other than the competent authorities of the Republic of Cyprus. With regard to phytosanitary certificates, a preliminary point to note is that the purpose of Directive 77/93 is to harmonize the laws and regulations to be adopted by the Member States by way of protective measures against the introduction into the Community of organisms harmful to plants or plant products. To that end the directive establishes a common system aimed at preventing the introduction into the Member States of plants or plant products from non-member countries when certain conditions are not satisfied. One of those conditions is that the plant or plant product in question should be accompanied by a phytosanitary certificate drawn up on a specific form, following an examination enabling freedom from any disease or any parasites to be certified. Article 12 (1) (b) of the directive, as amended, requires phytosanitary certificates to be issued by the authorities empowered to do so on the basis of laws or regulations of the exporting country. 531

Part II: Cyprus–Europe Relations (1983–2006) 59. The applicants and the Greek Government claim that, in the case of products originating from Cyprus, phytosanitary certificates may only be issued on the basis of laws or regulations of the Republic of Cyprus. 60. The United Kingdom and the Commission consider that the interpretation and application of the contested provisions of Directive 77/93 must not lead to arbitrary discrimination between the inhabitants of Cyprus. They claim that in practice certificates issued by the entity in the northern part of Cyprus are just as dependable as those issued by the Republic of Cyprus and that the reliability of such certificates may always be checked at the frontier by the authorities of the importing Member State. Consequently, to reject phytosanitary certificates issued by the Turkish community in the northern part of Cyprus would constitute arbitrary discrimination against the population of that part of the island. 61. It should be noted that the common system of protection against the introduction of harmful organisms in products imported from nonmember countries, laid down in Directive 77/93, is based essentially on a system of checks carried out by experts lawfully empowered for that purpose by the Government of the exporting State and guaranteed by the issue of the appropriate phytosanitary certificate. The conditions governing acceptance of those certificates as a uniform means of proof must consequently be absolutely identical in all the Member States. 62. In applying Directive 77/93, importing Member States may of course carry out checks at the frontier on products from non-member countries. In practice, however, as the Commission has admitted in its written observations, such checks have significant limitations and, in any event, cannot take the place of phytosanitary certificates. 63. Furthermore, any difficulty or doubt concerning a certificate must be brought to the attention of the authorities of the exporting State by the importing Member State. That cooperation, which is necessary in order to achieve the objectives of the directive, cannot be established with authorities who are not recognized either by the Community or by its Member States. It would be impossible for an importing State to address enquiries to the departments or officials of an entity which is not recognized, for instance concerning contaminated products or certificates that are incorrect or have been interfered with. Clearly only the authorities of the Republic of Cyprus are in a position to take action following complaints connected with the contamination of plant products exported from Cyprus. 64. Consequently the term ‘authorities empowered’ appearing in Article 12 (1) (b) of Directive 77/93 must be interpreted as referring exclusively, with regard to imports of products from Cyprus, to the authorities empowered by the Republic of Cyprus to issue phytosanitary certificates. 65. Directive 77/93 therefore precludes acceptance by the authorities of a Member State, when citrus fruit or potatoes are imported from Cyprus, of 532

European Court of Justice phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus. 66. The special situation of Cyprus, which is the result of its de facto partition and explains the hypothetical circumstances referred to in the third, fourth and fifth questions, is not such as to alter, with regard to exports of products from its northern part, the conclusions reached on the interpretation of the provisions concerning movement and phytosanitary certificates. 67. In the light of all the foregoing considerations, the answer to the questions submitted by the national court must be that the Association Agreement and Directive 77/93 are to be interpreted as precluding acceptance by the national authorities of a Member State, when citrus fruit and potatoes are imported from the northern part of Cyprus, of movement and phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus. Costs 68. The costs incurred by the United Kingdom, the Greek and Irish Governments and the Commission of the European Communities, which have submitted observations to the Court are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs in a matter for that court. On those grounds, THE COURT, in answer to the questions referred to it by the High Court of Justice (Queen’s Bench Division), by order of 2 December 1992, hereby rules: The Agreement of 19 December 1972 establishing an Association between the European Economic Community and the Republic of Cyprus, annexed to Council Regulation (EEC) No. 1246/73 of 14 May 1973, and Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products must be interpreted as precluding acceptance by the national authorities of a Member State, when citrus fruit and potatoes are imported from the part of Cyprus to the north of the United Nations Buffer Zone, of movement and phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus.

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THE UNITED KINGDOM _____________________________________

52. Can the ‘TRNC’ be considered a distinct legal entity? A view from the UK courts In the post-1974 period, the controversial legal status of North Cyprus has been the subject matter of several cases in foreign national courts. Perhaps owing to the strong political and economic links between Cyprus and the UK, most of the jurisprudence on this issue has emerged from English courts and tribunals. Below, attention has been given to three such cases that were decided between 1978 and 2002 at different judicial levels. Due to its legal significance, Orams, a fourth case of this kind, has been explored elsewhere in this book under a different heading, where more space can be devoted to it. In Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1978] 1QB 205 – a case relating to the seizure of hotels in North Cyprus by the government of the Turkish Federated State of Cyprus (forerunner of the TRNC) – no such government or state was recognized ‘de jure’ or ‘de facto’ by the United Kingdom government. After reviewing various authorities Alfred Thompson Denning, the then Master of the Rolls, said this (on page 218):

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Part II: Cyprus–Europe Relations (1983–2006) I would unhesitatingly hold that the courts of this country can recognize the laws or acts of a body which is in effective control of a territory even though it has not been recognized by Her Majesty’s Government de jure or de facto: at any rate, in regard to the laws which regulate the day-to-day affairs of the people, such as their marriages, their divorces, their leases, their occupations, and so forth: and furthermore that the courts can receive evidence of the state of affairs so as to see whether the body is in effective control or not. This case was decided on grounds not relevant to Lord Denning’s comments, but no criticism of his comments has been reported. In Caglar v Billingham (Inspector of Taxes) [1996] STC (SCD) 150, [1996] 1 LRC 526, the issue was whether the London representatives of North Cyprus could claim diplomatic exemption from income tax by virtue of S. 321(2)(b) of the Income and Corporation Taxes Act 1988. The following points emerged from the ruling: In the context of the other provisions in the 1988 Act which gave exemption from income tax to representatives of foreign states, it was the intention of Parliament that the reference in s 321(2)(b) to ‘any foreign state’ should mean any foreign state recognised by Her Majesty’s government. Since by virtue of the Cyprus Act 1960 the only state on the island of Cyprus recognised by Her Majesty’s government was the Republic of Cyprus, the Turkish Republic of Northern Cyprus was not therefore a foreign state for the purposes of s 321(2)(b). Moreover, it would have been contrary to public policy to take cognisance of the Turkish Republic of Northern Cyprus as that would have involved the commissioners in acting inconsistently with the foreign policy and diplomatic stance of the United Kingdom. It followed that the appellants, who were the representatives of the Turkish Republic of Northern Cyprus, were not entitled to the exemption in s 321(2)(b). (2) Since the Turkish Republic of Northern Cyprus was not recognised by any member of the international community other than Turkey, it did not have functional independence because it could not enter into relations with other states, which was one of the requirements of statehood. If the reference in s 321(2)(b) to ‘any foreign state’ had had to be interpreted as including states not recognised by Her Majesty’s government, the Turkish Republic of Northern Cyprus would accordingly not have been such a state, since it failed to satisfy all the requirements of statehood. The case of Emin v. Yeldag [2002] 1FLR 956 has been reported as a breakthrough in showing that the UK courts have taken a major step towards recognizing the Turkish-Cypriot legal system. However, the Learned Judge 46 deliberately stopped short of making such a finding. 536

The United Kingdom The issue before the court was whether the fact that the British government did not recognize the TRNC affected the validity of a divorce decree granted by the TRNC. The Attorney General and the Secretary of State for Foreign and Commonwealth Affairs on behalf of the present British government intervened in the case and submitted that the English courts should respect the acts of the TRNC authorities in relation to private rights. After reviewing all the above authorities Mr Justice Sumner concluded: ‘That recognition is possible because the Republic of Cyprus is one country but with two territories, each with their own legal system.’ However, this judgment must be treated cautiously, as the learned judge went on to emphasise that his decision was limited only to the recognition of the TRNC divorce decree (as a private right) by saying: ‘But the validity given to such decisions of a court of an unrecognized state must however be limited in scope. It must never be inconsistent with the foreign policy or diplomatic stance of the United Kingdom Government.’ His decision was based on the fact that he was able to find that the particular English law in question applied to both territories and countries. Accordingly he was able to decline to follow the argument that the TRNC was a country, as opposed to being merely a territory (albeit with its own laws) saying: ‘It can be seen immediately that given the history and present administration of the TRNC, there is an argument that, if it is not a territory, it is a country. However to make that finding might well lead to the court acting inconsistently with the foreign policy of the United Kingdom. I therefore decline to follow that argument.’ He did not determine whether the TRNC was or was not a country, simply because he was not required to do so. In submitting their arguments the Attorney General and the foreign secretary reminded the court that the diplomatic stance of the UK government was not to recognize the TRNC.

53. Property wars: can EU laws be used as a sword? Meletios Apostolidis v. David Charles Orams and Linda Elizabeth Orams (2006) This case raised the question of the enforceability in England of judgments of the courts of the Republic of Cyprus concerning land within the Turkish Republic of 537

Part II: Cyprus–Europe Relations (1983–2006) Northern Cyprus in accordance with certain EU principles. Mr Meletios Apostolides, who owned land in North Cyprus prior to the division of the island in 1974, sued an English couple who ‘bought’ his property from Turkish Cypriots in 2003 in conformity with the laws applicable in North Cyprus. The proceedings in the UK attracted controversy as the Orams couple were represented by Miss Cherie Booth QC – the wife of British PM Tony Blair – in a case that may have major political and economic implications for North Cyprus. In his judgment, the learned Justice Jack answered the question negatively, basing his reasoning primarily on the relevant provisions of Protocol No 10 to the Treaty of Accession which provided that ‘the application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.’ At the time of writing, it was widely expected that the matter would go to the UK Court of Appeal. Following a preliminary ruling, it may also be referred to the European Court of Justice in Luxembourg, which has the power to issue the final word in disputes over the application and interpretation of EU laws. IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 6 September 2006

Meletios Apostolidis v. David Charles Orams and Linda Elizabeth Orams Mr Justice Jack: Introduction: 1. These appeals raise the question of the enforceability in England of judgments of the courts of the Republic of Cyprus concerning land within the Turkish Republic of Northern Cyprus. The Turkish Republic is not recognised by the United Kingdom or by any country save Turkey, but it has de facto control of the area which it occupies. The appeals have an importance which extends far beyond the parties to them. 2. On 9 November 2004 the respondent to the appeals, Meletios Apostolides, obtained a judgment in default of appearance in the Nicosia District Court in Cyprus against the appellants, David and Linda Orams. On 19 April 2005 judgment was delivered in the District Court refusing to set aside the earlier judgment on the ground that there was no valid defence to the claim. On 21 October 2005 those judgments were registered in, and declared enforceable by, the Queen’s Bench Division of the High

538

The United Kingdom Court pursuant to Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The appeals are against those registrations. 3. The situation with which the court is concerned can only be understood in the context of the recent history of Cyprus. I shall set it out as briefly as I may and with the intention of avoiding controversy. The Republic of Cyprus came into being in 1960 when the United Kingdom gave up its sovereignty of the island with the exception of the two sovereign base areas of Akrotiri and Dhekelia. This was achieved by, among other instruments, the Treaty of Establishment entered into by the United Kingdom, Greece, Turkey and the Republic itself. The constitution of the Republic was intended to provide a balance between the Greek and Turkish communities on the island. Within three years the bi-communal government of the island had effectively failed. In March 1964 a United Nations peace-keeping force, UNFICYP, arrived. A Turkish Cypriot administration came into being in the area then under Turkish Cypriot control. In July 1974 there was a coup against the government of the President, Archbishop Makarios. The aim of the coup was to secure union with Greece. On 20 July 1974 the Turkish army invaded the north of the island and secured control of the area now under the administration of the Turkish Republic. One outcome of this was the effective expulsion of Greek Cypriots from much of the area that was occupied. Turkish Cypriots in the unoccupied area left for the occupied area. The Turkish authorities set up an administration for that part of the island. The Turkish Republic of Northern Cyprus, the TRNC was declared in 1983. The TRNC has not been recognised by any country save Turkey. It has control over the relevant area, and the Republic of Cyprus does not. During the negotiations for the accession to the European Union of Cyprus together with nine other countries, it was hoped that a settlement could be reached between the Greek and Turkish communities so the whole island might be brought fully within the EU. But this had not occurred prior to the Treaty of Accession which also brought the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and the Slovak Republic into the European Union. The Treaty was signed on behalf of the Republic of Cyprus on 16 April 2003. A plan had been put forward, called the Annan Plan because it was proposed by the Secretary-General of the United Nations of that name, which was intended to resolve the dispute between the Greek and Turkish Communities. The plan was rejected by the Greek community in a referendum held on 24 April 2004. It was accepted by the Turkish community. The result was that the practical division of the island remained unchanged. It had been decided by the European Council on 13 December 2002 prior to the Treaty of Accession that ‘in the absence of a settlement the application of the acquis to the northern part of the island 539

Part II: Cyprus–Europe Relations (1983–2006) shall be suspended until the Council decides unanimously otherwise, on the basis of a proposal by the Commission.’ The decision was given effect by Protocol No 10 to the Treaty of Accession. The Protocol provided that ‘the application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.’ It is agreed that ‘the acquis’, also called ‘the acquis communautaire’, refers to the entire body of legislation of the European Union. It includes all treaties, legislation and the decisions of the European Court. 4. I can now come to those involved. Mr Apostolides is a Greek Cypriot, who lived in the area which is now under the control of the TRNC, where his family owned land at Lapithos in the district of Kyrenia. As a result of the invasion he had to flee. Mr and Mrs Orams are British and live in Hove in Sussex. In 2002 they purchased 2400 square feet of land, which was part of land which had come into the ownership of Mr Apostolides. It then had a partly built house on it and the lemon trees which had formerly been on it were gone. They purchased it from a Turkish Cypriot, who was the registered owner under the law of the TRNC. He had purchased it from another Turkish Cypriot who, they were told, had left a property in the south of the island and had acquired it from the TRNC. Mr and Mrs Orams paid £50,000. They spent a further £160,000 building their villa, adding a swimming pool and making a garden. In April 2003, following the easing of restrictions on travel to the TRNC, Mr Apostolides visited Lapithos and saw the property. Early in October 2004 he introduced himself to Mrs Orams and they had a pleasant conversation. The proceedings in Cyprus 5. It is helpful to state at this point that the civil procedure of the courts of the Republic of Cyprus broadly follows that of England in 1954, that being the relevant date as I understand it. 6. On Tuesday, 26 October 2004 Mr Apostolides issued a specially endorsed writ in the District Court of Nicosia naming Mr and Mrs Orams as defendants. It gave their English address. It claimed an order that they demolish the villa, the swimming pool and the fence around their property in Lapithos, that they deliver Mr Apostolides free occupation of the land, and damages for trespass. Mr Apostolides relied on his title to the land. 7. On the evening of the same day service of the writ was effected on Mrs Orams on behalf of herself and her husband at their villa. It is accepted the service was good. The circumstances may be nonetheless of some importance because they may be relevant to whether Mrs Orams had sufficient time in which to arrange for an appearance to be entered. I will return to that. 540

The United Kingdom 8. The time limit for entering an appearance was ten days from the service of the writ. The last day was therefore 5 November. On 8 November an application was made on behalf of Mr Apostolides for judgment to be entered in default of appearance. The application was supported by an affidavit sworn on that day by Mr Apostolides at the Cyprus High Commission in London. On 9 November judgment in default of appearance was entered. On 10 November a certificate was obtained in the form prescribed by Annex V to Regulation 44/2001. On 9 November Mr Mentes, the lawyer instructed on behalf of Mr and Mrs Orams, attended at the District Court with the intention of entering an appearance on their behalf. The judgment had already been entered. 9. The judgment required Mr and Mrs Orams to demolish the villa, the pool and the fencing, to give Mr Apostolides possession of the land, and to pay CY£ 7654.83 special damages, CY£ 294.41 mesne profits monthly from December 2004 until delivery up, and CY£ 380.50 costs, all with interest at 8%. 10. On 15 November 2004 an appearance was entered on behalf of Mr and Mrs Orams. It was not conditional. On the same day an application was issued on their behalf that the judgment be set aside. The application was supported by affidavits from Mrs Orams and Mr Mentes. Following a hearing at which Mrs Orams gave oral evidence judgment was delivered by District Judge Efrem on 19 April 2005 dismissing the application. It was a substantial judgment, 36 pages in translation. The judge held that by reason of the merger of the Kyrenia district with the Nicosia district in 1974 and the land at Lapithos being in the Kyrenia district, the court – that is the District Court at Nicosia, had jurisdiction to try the case (page 20 of the translation). She considered the English case of Hesperides Hotels v. Muftizade irrelevant because the court was there concerned with its jurisdiction over foreign real property, namely the hotels. Here, as she held, the court was concerned with real property over which it had jurisdiction. She cited the decision of the European Court of Human Rights, Loizidou v. Turkey [1997] 23 EHHR 513, as authority that ownership of land in the north of Cyprus remained with its original Greek Cypriot owners. That defeated the submission that the court should take account of the de facto situation in the north (page 22). She then turned to whether Mr and Mrs Orams had shown an arguable defence (page 23). The onus to establish a good or prima facie arguable defence was on Mr and Mrs Orams (page 25). The basic argument that Mr and Mrs Orams owned the property under the title deed issued by the TRNC was answered by Loizidou. The judge also cited Xenides-Arestis v. Turkey, Application no. 46347/99, judgment 22 December 2005, and other ECHR cases to like effect. She held that Mr Apostolides had not lost his right to the land (page 27). She held 541

Part II: Cyprus–Europe Relations (1983–2006) that the conduct of Mr and Mrs Orams towards the property amounted to trespass (page 30). She held that neither ‘local custom’ nor the good faith of Mr and Mrs Orams could provide a defence (page 31). She held that Regulation No 44/2001 was irrelevant because it was concerned with the recognition and execution of judgments in other jurisdictions and was irrelevant to the question of setting aside the judgment obtained by Mr Apostolides (page 33). The judge held that no prima facie or arguable defence had been shown and so the application to set aside the judgment must be dismissed (page 33). By its order given on 19 April 2005 and drawn up on 26 April 2005 the District Court ordered that the application for setting aside the judgment should be dismissed, and awarded costs to Mr Apostolides. 11. Mr and Mrs Orams have appealed against the judgment of District Judge Efrem of 19 April 2005 to the Supreme Court of Cyprus. The appeal has still to be heard. In the written address filed on behalf of Mr and Mrs Orams and dated 25 November 2005 emphasis is laid on Protocol 10 to the Treaty of Accession and Regulation No 44/2001. The English proceedings 12. The procedure for the enforcement of judgments between Member States of the European Union is provided by Regulation No 44/2001. Article 53 provides that a party seeking recognition or applying for a declaration of enforceability must provide a copy of the judgment in question together with an Annex V certificate. Section 1 of Part 74 of the Civil Procedure Rules makes further provision as to the manner in which a judgment is enforced in the High Court. In the present case an application was made in respect of the judgments of the Nicosia District Court of 9 November 2004 and 19 April 2005 on 18 October 2005. Article 41 of the Regulation provides that the party against whom registration is sought shall not be entitled to make any submissions at this stage. By orders of Master Eyre made on 21 October 2005 it was ordered that the judgments be registered and be declared enforceable. On 22 November those orders were served on Mrs Orams at the Nicosia District Court. They were served on Mr Orams at Hove on 31 December 2005. Article 43 provides for the orders of Master Eyre to be appealable by Mr and Mrs Orams. Notice of appeal was served on behalf of Mrs Orams on 22 December 2005. It is agreed that Mr Orams is to be treated as a party to that appeal. So although I am dealing with what is designated an appeal by Article 43, it is in fact the first time that the issues raised by the application for registration are being considered by the court. Article 44 and Annex IV provide that a judgment on an appeal under Article 33 may be the subject of a single further appeal on a point of law. 542

The United Kingdom The issues on the appeals 13. I will list the issues as I have distilled them from the submissions which have been made, under short headings: (1) issues arising from the situation of the land; (2) issues arising in connection Article 6 of the European Convention on Human Rights; (3) issues arising on Article 1 of Protocol No 1 to the European Convention on Human Rights; (4) issues arising from the fact that the judgment of 9 November 2004 was a default judgment and Article 34.2 of Regulation 44/2001; (5) issues in connection with the entry of appearance and Article 24 of Regulation 44/2001. Issues arising from the situation of the land 14. I will first look further at the provisions relating to the application of European law to the Republic of Cyprus, second at the manner in which the European Court has approached the land problem, before coming to the terms of Regulation 44/2001 and their application in these appeals. 15. By Article 2 of the Treaty or Act of Accession whereby the Republic of Cyprus became a member of the European Union it was provided that: From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act. So Community law, the acquis, was made to apply in the Republic of Cyprus. But as I have stated this was subject to Protocol No 10. I will set out the preamble and Article 1 of the Protocol: THE HIGH CONTRACTING PARTIES REAFFIRMING their commitment to a comprehensive settlement of the Cyprus problem, consistent with relevant United Nations Security Council Resolutions, and their strong support for the efforts of the United Nations Secretary-General to that end, CONSIDERING that such a comprehensive settlement to the Cyprus problem has not yet been reached, CONSIDERING that it is, therefore, necessary to provide for the suspension of the application of the acquis in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control, CONSIDERING that, in the event of a solution of the Cyprus problem this suspension shall be lifted, CONSIDERING that the European Union is ready to accommodate 543

Part II: Cyprus–Europe Relations (1983–2006) the terms of such a settlement in line with the principles on which the EU is founded, CONSIDERING that it is necessary to provide for the terms under which the relevant provisions of EU law will apply to the line between the above-mentioned areas and both those areas in which the Government of the Republic of Cyprus exercises effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Northern Ireland, DESIRING that the accession of Cyprus to the European Union shall benefit all Cypriot citizens and promote civil peace and reconciliation, CONSIDERING, therefore, that nothing in this Protocol shall preclude measures with this end in view, CONSIDERING that such measures shall not affect the application of the acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus. Article 1 1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1. 16. The first case in the European Court of Human Rights is Loizidou v. Turkey [1997] 23 EHRR 513. The applicant, a Greek Cypriot, had owned property in northern Cyprus and alleged that Turkish forces had prevented her from returning to it. She alleged that Turkey was responsible for continuing violations of Article 1 of Protocol No 1 and of Article 8 of the Human Rights Convention. The majority of the Court held that the denial of access and subsequent loss of control of the property was imputable to Turkey, and that there had been a breach of Article 1 of Protocol No 1. It was held unanimously that there had been no breach of Article 8 because the applicant had not established that the property had been her home. Among other submissions Turkey relied on Article 159 of the Constitution of the TRNC. That provided that all immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were later considered by law as abandoned or ownerless and situated within the boundaries of the TRNC on 15 November 1983 should be the property of the TRNC, and the Land Registry Office should be amended accordingly. As to this the Court stated: ‘44. In this respect it is evident from international practice and the various, strongly worded resolutions referred to above that the inter544

The United Kingdom national community does not regard the ‘TRNC’ as a State under international law and that the Republic of Cyprus has remained the sole legitimate Government of Cyprus – itself bound to respect international standards in the field of the protection of human and minority rights. Against this background the Court cannot attribute legal validity for purposes of the Convention to such provisions as Article 159 of the fundamental law on which the Turkish Government rely. 45. The Court confines itself to the above conclusion and does not consider it desirable, let alone necessary in the present context to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the ‘TRNC’. It notes, however, that international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, for instance as regards the registration of births, deaths and marriages, ‘the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory’. 46. Accordingly, the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of the TRNC. No other facts entailing loss of title to the applicant’s properties have been advanced by the Turkish Government nor found by the Court. In this context the Court notes that the legitimate Government of Cyprus have consistently asserted their position that Greek Cypriot owners of immovable property in the northern part of Cyprus, such as the applicant, have retained their title and should be allowed to resume free use of their possessions, whilst the applicant obviously has taken a similar stance. 47. It follows that the applicant, for the purposes of Article 1 of Protocol No. 1 and Article 8 of the Convention, must still be regarded to be the legal owner of the land. The objection ratione temporis therefore fails.’ 17. Paragraph 45 relates to what is sometimes called the Namibia exception. That is the exception to the principle that the acts, including the laws of a state which lacks international recognition are of no effect, which exception may give effect to acts such as the registration of births, deaths and marriages, and perhaps other transactions between persons in the territory controlled by the unrecognised state. In its Advisory Opinion on the legal consequences for states of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970) the International Court of Justice stated in paragraph 125, quoted in part by the European Court: ‘125. In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any 545

Part II: Cyprus–Europe Relations (1983–2006) advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.’ 18. In paragraph 44 the European Court was rejecting the submission made on behalf of Turkey that the exception enabled or obliged it to recognise the effect of Article 159 of the 1985 Constitution. In the course of its finding that there was a breach of Article 1 of Protocol No 1 the Court stated: ‘62. With respect to the question whether Article 1 is violated, the Court first recalls its finding that the applicant, for purposes of this Article, must be regarded as having remained the legal owner of the land … 64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the ‘TRNC’ and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey. It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial or access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.’ 19. The case of Cyprus v. Turkey [2002] 35 EHRR 30 concerned a number of allegations made against Turkey by the Republic of Cyprus arising from the Turkish invasion and occupation of northern Cyprus. One issue was the homes and property of displaced persons. In paragraphs 82 to 102 of its judgment the Court considered whether the judicial organs set up by the TRNC were to be simply disregarded. It considered the Namibia case and Loizidou in that context. It held, in paragraph 98, that they could not be simply disregarded, but whether they might afford a remedy had to be approached on a case by case basis. Under the heading of alleged violations relating to homes and property, the Court stated in paragraph 171 546

The United Kingdom that Turkey did not dispute the assertion that it was not possible for displaced Greek Cypriots to return to their homes in the north. The Court held that in those circumstances the question of domestic remedies within the TRNC did not arise. The Court concluded in relation to Article 8: ‘174. The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 (2) of the Convention; secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing. 175. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.’ 20. In relation to the case under Article 1 of Protocol No 1 the Court stated: ‘183. The Commission, essentially for the reasons set out by the Court in the above-mentioned judgment [Loizidou], concluded that during the period under consideration there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. 184. The Court agrees with the Commission’s analysis. It observes that the Commission found it established on the evidence that at least since June 1989 the ‘TRNC’ authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. This purported deprivation of the property at issue was embodied in a constitutional provision, ‘Article 159 of the TRNC Constitution’, and given practical effect in ‘Law no. 52/1995’. It would appear that the legality of the interference with the displaced persons’ property is unassailable before the ‘TRNC’ courts. Accordingly there is no requirement for the persons concerned to use domestic remedies to secure redress for their complaints.’ In paragraph 186 the Court recalled the finding in Loizidou that title had not been lost by the operation of Article 159 of the TRNC Constitution. In paragraph 186 it stated that its reasoning in 547

Part II: Cyprus–Europe Relations (1983–2006) Loizidou applied generally to displaced Greek Cypriots who were unable to have access to their property. The Court held that there was a continuing violation of Article 1. 21. The judgment in Xenides-Arestis v. Turkey was delivered by the European Court of Human Rights on 22 December 2005. The applicant was a Greek Cypriot who had been forced to leave her home and property in Famagusta by Turkish military forces in August 1974. The Court recorded that on 23 April 2003 new measures were adopted by the TRNC regarding crossings between northern and southern Cyprus. It recorded that on 30 June the Parliament of the TRNC had enacted a law setting up an ‘Immovable Property, Determination, Evaluation and Compensation Commission’. It recorded the failure of the Annan Plan as a result of its rejection in the Greek Cypriot referendum. It followed its decisions in Loizidou and Cyprus v. Turkey and in two further cases to hold that breaches of Article 8 and of Article 1 of Protocol No 1 were made out. The Court then considered the application of Article 46 which relates to the execution of the Court’s judgments. It referred to the widespread nature of the problem of Greek Cypriot property in northern Cyprus, and to the fact that the Court had approximately 1400 property cases pending before it brought primarily by Greek Cypriots against Turkey. The Court stated: ‘39. Before examining the applicant’s individual claims for just satisfaction under Article 41 of the Convention and in view of the circumstances of the instant case, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention. It reiterates that by virtue of Article 46 of the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], no. 39221/98 and 41963/98, § 249, ECHR 548

The United Kingdom 2000-VIII, and Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V). 40. The Court considers that the respondent State must introduce a remedy which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005. Such a remedy should be available within three months from the date on which the present judgment is delivered and redress should be afforded three months thereafter.’ Having considered the submissions made to it in relation to compensation the Court concluded: ‘50. In the circumstances of the case, the Court finds that the question of compensation for pecuniary and non-pecuniary damage is not ready for consideration. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1 of the Rules of Court) and in the light of such individual or general measures as may be taken by the respondent Government in execution of the present judgment. Pending the implementation of the relevant general measures, which should be adopted as provided for in paragraph 40 above, the Court will adjourn its consideration of all applications deriving from the same general cause.’ 22. I have mentioned the European Court’s reference to the Immovable Property Commission set up by the TRNC. The effect of the law setting up the Commission is described in the expert report made for the purpose of the present appeals by Professor Dr Zaim Necatigil who represented Turkey in the three cases just considered. He states that the Commission was set up following the admissibility decision of the European Court in Xenides-Arestis of 14 March 2005. He states that the law setting up the Commission ‘is presently under the consideration of the European Court of Human Rights which will decide whether it constitutes, under the Convention system, adequate and effective domestic remedies.’ He states that the Commission has seven members of whom two are non-Cypriot and jurists of high standing. He states that the Commission is fully functional and has been receiving applications from members of the Greek Cypriot community. 23. With that by way of background I can come to the relevant provisions of 549

Part II: Cyprus–Europe Relations (1983–2006) Regulation 44/2001 ‘on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’. The Regulation is the successor to the Brussels Convention of 1968 and follows it closely in many respects. I will first set out some paragraphs from the preamble to the Regulation: 2. Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential. 6. In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable. 10. For the purposes of the free movement of judgments, judgments given in a Member State bound by this Regulation should be recognised and enforced in another Member State bound by this Regulation, even if the judgment debtor is domiciled in a third state. 12. In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice. 16. Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute. 17. By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. 18. However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected. 24. Article 2 provides the primary rule as to jurisdiction, that persons domiciled in a member state shall be sued there. Article 3 provides that such persons may only be sued in another state by virtue of the rules set out in 550

The United Kingdom Sections 2 to 7 of the jurisdiction chapter. Section 6 is headed ‘Exclusive jurisdiction’. It consists of one Article, Article 22. That provides: 22. The following courts shall have exclusive jurisdiction, regardless of domicile: 1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. Paragraph 1 continues with a provision relating to tenancies. Paragraphs 2 to 5 contain provisions relating respectively to companies, public registers, patents, trade marks and so on, and the registration of judgments. 25. Article 25 provides: 25. Where a court of a Member State is seized of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction. Article 33.1 provides: 33. 1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. Articles 34.1 provides: 34. A judgment shall not be recognised: 1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; Article 35 provides: 35. 1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72. 2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction. 3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction. Section 6 of Chapter II consists of Article 22, quoted above, which provides for exclusive jurisdiction in respect of immovable property to vest in the courts of the member state where it is situated.

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Part II: Cyprus–Europe Relations (1983–2006) Article 36 provides: 36. Under no circumstances may a foreign judgment be reviewed as to its substance. Article 45 provides: 45. 1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration or enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay. 2. Under no circumstances may the foreign judgment be reviewed as to its substance. The effect is that, unless a ground specified in Article 34 or 35 is made out, the declaration of enforceability remains. 26. The submission by Mr Tom Beazley QC on behalf of Mr Apostolides is straightforward. The Republic of Cyprus and the United Kingdom are both Member States of the European Union. The Regulation applies between them in relation to the judgments of the Nicosia District Court. The judgment does not conflict with Article 21.1 and so the Article 35.1 does not require that the judgment should not be recognised. Therefore Article 45 requires that the appeal be dismissed. It is submitted that there is no conflict with Article 22.1 because the land is not situated in another Member State, that is, a Member State other than Cyprus. The land is in fact within the territory of the Republic of Cyprus although not within the area it controls. That is clear, it is submitted, from the Treaty of Accession and Protocol 10. Further, because the case does not fall within Article 22.1 or any other exception permitted by Article 45.1, Article 35.3 prohibits this court from examining the jurisdiction of the Cyprus court. 27. The submission made by Miss Cherie Booth QC on behalf of Mr and Mrs Orams rested on the suspension of the acquis in those areas of the Republic of Cyprus over which its government does not exercise effective control. That is the area which is within the control of the TRNC, and includes the land involved in the present appeals. Miss Booth submitted that the effect of the Protocol was to take the area in the control of the TRNC out of the application of Regulation 44/ 2001 – Outline Submissions, paragraph 4.15. Put at its starkest, this comes to saying that the registration proceedings are misconceived and of no effect because they are made under a legal instrument which does not apply. The submissions which I heard did not perhaps take it so far, but that is, I think, the logical end point. 28. In support of her submission Miss Booth relied on the Commission of the European Communities v. United Kingdom [2003] ECR I–9481, Jersey Produce Marketing Organisation Ltd v. The State of Jersey and 552

The United Kingdom Another [2005] ECR I–9543 and KappAhl Oy [1998] ECR I–8069. These cases in the European Court are concerned with the construction of limitations on the application of particular aspects of Community law to particular territories. They show that treaty provisions providing for the admittance of a state to the European Union may prevent the application of Community law or aspects of it, to a particular territory such as, in the first case, Gibraltar. But they do not help further. Mr Beazley relied on R v. MAFF ex parte Anastasiou (Pissouri) Ltd [1994] ECR I–3087. That case concerned an ‘agreement establishing an association between the European Economic Community and the Republic of Cyprus’ providing for preferential arrangements for citrus fruits and potatoes originating from Cyprus. The agreement provided for the originating status of products to be certified by the ‘customs authorities of the exporting State’. It was held that Member States were precluded from accepting certificates from the TRNC and the de facto division of Cyprus did not warrant a departure from the provisions of the agreement, the only Cypriot State which was recognised being the Republic of Cyprus. I do not find this of assistance beyond its emphasis on the lack of status of the TRNC. 29. Mr Beazley submitted that the purpose of Protocol 10 was to prevent the Republic of Cyprus from being found in breach of Community law by reason of matters occurring in northern Cyprus and beyond its control. He is probably right that this was a purpose. I was not, however, referred to any material which showed what the function of the Protocol was other than a practical solution to the admission of the Republic of Cyprus to the European Union while the division of the island remained. It is for that purpose that I have set out the preamble to the Protocol. In my view there is no reason to limit the intended effect of the Protocol as Mr Beazley suggests. If there was a single, defined intention on the part of the parties to the Treaty of Accession and its Protocols it may equally have been to provide in practical effect that the area controlled by the TRNC should not the subject to Community law for any purpose. It must be doubted whether the question which faces this court was in the minds of any of those who were involved with the content of the Treaty and its Protocols at that time. 30. I fully recognise the difficulty of the problem. I have concluded, however, that the correct analysis is that the effect of the Protocol is that the acquis, and therefore Regulation 44/2001, are of no effect in relation to matters which relate to the area controlled by the TRNC, and that this prevents Mr Apostolides relying on it to seek to enforce the judgments which he has obtained. Just as, in accordance with Mr Beazley’s submission, Mr Apostolides could not rely on the acquis against his own government in connection with his human rights arising from matters relating to the area controlled by the TRNC, he cannot rely on the acquis against Mr and 553

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31.

32.

33.

34. 554

Mrs Orams to enforce his judgments against them. Whether or not that is right is a matter of law. But it is the answer which avoids the conflict which must otherwise arise in cases such as the present between the de facto situation in northern Cyprus and its system of law, and the enforcement of judgments such as the present against the new ‘owners’ of Greek Cypriot property, who have assets elsewhere in the European Union. That, it seems to me, is an international problem ill-suited to be resolved by private litigation. The cases which I have cited in the European Court of Human Rights show that compensation can be obtained at a higher level of litigation, with the State of Turkey as the defendant. They show also the development through the influence of that court of a scheme to provide compensation. These practical considerations support the conclusion that Protocol 10 is to be given the effect I have found that it should have. I do not think that the case for Mr and Mrs Orams on this aspect of the appeal can be put in any other way. The land is within the Republic of Cyprus. There is no conflict with Article 22.1 of the Regulation. It is not within the territory of another Member State. The cases in the European Court of Human Rights show that the laws of the TRNC cannot be relied on by Mr and Mrs Orams to deprive Mr Apostolides of his title to the land. In any event that would involve a review of the substance of the judgment of the District Court of 19 April 2005, contrary to Article 36. So on these matters I accept the submissions of Mr Beazley. Before leaving this aspect of the appeals there are two further matters I should mention. First, Mr Beazley did not accept that the judgments of the Nicosia District Court were wholly related to ‘immovable property’ in the sense that it is used in Article 22.1. He did not develop the submission, but I understand it to be that the orders for costs stood separately and were enforceable regardless of the position under the Article. I do not consider that orders for costs can be separated from the underlying dispute which gives rise to them. If the subject matter of an action falls within Article 22.1, all the orders which are made in it are to be treated as falling within the Article. Jurisdiction cannot be divided unless the subject matter of the dispute should itself be divided. That is not the case here. The second matter is something which requires mention, but no more than that. I heard no argument as to the manner in which the judgments might be enforced against Mr and Mrs Orams in England. In so far as they provide for the payment of money there would not seem to be any difficulty. In so far as they provide for action by Mr and Mrs Orams in relation to their property within the TRNC, the position may be more complex. It is the case of Mr and Mrs Orams that it would be contrary to the law of the TRNC for them to act as the judgments require. If I am right in my conclusion that the effect of Protocol 10 is that Mr

The United Kingdom Apostolides cannot rely on Regulation 44/2001, that is determinative of the appeals in favour of Mr and Mrs Orams. I should nonetheless consider the further grounds which were raised for refusing recognition to the judgments and for according it. Issues arising on Article 6 of the Human Rights Convention 35. The submission on behalf of Mr and Mrs Orams was that the judgments should not be enforced because they were contrary to public policy in England, which is a ground of non-recognition provided by Article 34.1 of the Regulation. It was submitted that Article 6 of the Convention required not simply that a state should provide an opportunity for trial in accordance with the Article but also a means of execution of a judgment. That is established by the decision of the European Court of Human Rights in Immobiliare Saffi v. Italy, judgment of 28 July 1999. It was submitted that Article 6 was engaged because ‘the issue of an order that is impossible to enforce is manifestly unfair and contrary to Article 6 (1)’ – Outline Submissions, paragraph 6.7. It is said that the judgment of the Nicosia District Court cannot be enforced in the area where the land is situated. That is true. There is no means of enforcing the judgment in Lapithos. It is further the case of Mr and Mrs Orams that to comply with the judgment would put them in breach of the law of the TRNC. But the right to a means of execution included in Article 6 is a right which is vested in Mr Apostolides as the judgment creditor. It would seem that he would be unable to bring a case before the European Court against the Republic of Cyprus for failing to provide a means of execution because the situation is excepted by Protocol 10 to the Treaty of Accession. But on any view there are no rights vested in Mr and Mrs Orams under Article 6 which are in play here. No question of the enforcement of the judgments being contrary to public policy arises in connection with the Article. Issues arising in connection with Article 1 of Protocol No 1 to the Human Rights Convention 36. It is asserted that recognition of the judgments would be contrary to public policy and so, in accordance with Article 34.1, they should not be recognised, because by them the property of Mr and Mrs Orams is being expropriated contrary to Article 1 of Protocol No 1 to the Convention. In my judgment that misunderstands the nature of the Nicosia proceedings. In those proceedings the court considered whether Mr Apostolides had title to the land or whether Mr and Mrs Orams did. The court held in favour of Mr Apostolides and that Mr and Mrs Orams were trespassers. They were not title holders whose title was being expropriated; they were not owners whose property was being taken from them; they were trespassers who were to be treated as such. Article 1 is simply not engaged. 555

Part II: Cyprus–Europe Relations (1983–2006) Issues arising in connection with the judgment of 9 November 2004 being a default judgment 37. Article 34.2 of Regulation 44/2001 provides: 34. A judgment shall not be recognised: 1. … 2. Where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so. 38. For recognition to be refused the words of the Article require: (1) that the judgment was given in default of appearance; (2) that the defendant was not served with, here, the writ in sufficient time and in such a way as to enable him to arrange his defence; and (3) that the defendant did commence proceedings to challenge the judgment when it was possible for him to do so. 39. The third requirement was not present in the equivalent Article in the Brussels Convention, Article 27.2. Under that Article a defendant could ignore the proceedings and a default judgment provided he could establish the second requirement. 40. Mr Beazley submitted that it had been the position under Article 27.2 of the Brussels Convention, and is the position under Article 34.2 of the Regulation, that, where the defendant applied to have the default judgment set aside and failed, the ‘flaw’ of default was cured and a defendant could not rely on the Article. This would have the effect of posing a fourth requirement, namely that the defendant shall not have failed in an application to have the judgment set aside. 41. There are thus two main issues arising in connection with the default judgment: (1) Is the second requirement of Article 34.2 – not being served in sufficient time etc. – made out? (2) Are Mr and Mrs Orams barred from relying on the Article by the failure of their application to have the default judgment set aside on the ground that they had no sufficiently arguable defence to the claim? Both of these questions raise matters which are difficult and are not covered, at least directly, by the jurisprudence of the European Court.

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The United Kingdom The second requirement of Article 34.2 42. It is now accepted that service was good in accordance with the law of the Republic of Cyprus. There is also no dispute that the judgment entered on 9 November 2005 was entered in accordance with that law. It remains the duty of this court as the court which is asked to enforce the judgment to consider whether the second requirement of Article 34.2 is established. The period which the court should consider as the period which was available to enter an appearance is the period between service and the entry of the default judgment: TSN Kunstoffrecycling GMBH v. Jurgens [2002] EWCA Civ 11, [2202] 1 WLR 2459. Service was effected on Tuesday, 26 October 2004. The default judgment was entered on Tuesday, 9 November, leaving an interval of 13 days including two weekends in which to enter an appearance. 43. I must now return to the question of what happened in connection with the service of the writ on Mr and Mrs Orams. My findings are based on the oral evidence of Mrs Orams and Mr Candounas, the lawyer acting for Mr Apostolides, and the relevant witness statements. Those included a witness statement from Mr Mentes, the Turkish Cypriot lawyer instructed by Mrs Orams to act for her husband and herself in the proceedings. He did not give evidence. Mrs Orams made a statement in support of her application to have the default judgment set aside, which was dated 15 November 2005. Paragraphs 4 and 5 deal with what she did after she had been served. Even taking account of possible translation difficulties (from English to Turkish and back) they fail to set out in a coherent way what she did. That is a matter of drafting, and would not seem to have been her responsibility. Mr Mentes is referred to as ‘an advocate of mine who knew Greek’. It is stated that her husband told her to contact him. But it is then stated that she talked to three to five people in Lapithos who could not read Greek. Mr Mentes’s statement also made on 15 November 2005 begins ‘The Defendants/Petitioners are the customers of my office. Being foreigners they, from time to time, consult me in the TRNC and obtain legal opinion on the local laws and regulations.’ Yet Mrs Orams’s evidence to me was that she had no dealings with Mr Mentes before 5 November 2004, and that he was recommended to her by a friend. These evidential difficulties were compounded by the fact for much of her time in the witness box Mrs Orams was very emotional, which made it more difficult to test her evidence. Mrs Orams made a further statement dealing with the service of the writ and what she did in consequence, which is dated 19 July 2005. I have concluded that I should accept Mrs Orams’ evidence that she had no contact with Mr Mentes prior to 5 November 2005. First, there is nothing apart from the witness statements to suggest that Mr and Mrs Orams had previously used any lawyer in Cyprus apart from Mr Osman who had acted in the purchase of the land. Second and more important, I do not think that Mrs Orams’s 557

Part II: Cyprus–Europe Relations (1983–2006) account of her search for a lawyer who could act for her is an invention. If she and her husband were already using Mr Mentes, she would surely have gone to him sooner. It is possible that Mr Mentes – who, I think, drafted the statements of 15 November 2004, thought, incorrectly, that Mr and Mrs Orams had previously used his partnership. 44. My further findings of fact are as follows. On Tuesday, 26 October 2004, the day the proceedings were issued, two persons, Mr Tyrimos, a court process server and a Greek Cypriot from Nicosia, and Mr Fevzi, a Turkish Cypriot who was employed in the office of Mr Candounas, approached Mrs Orams while she was watering her garden at dusk. They were filmed on video by Mr Candounas who had walked through an orchard with Mr Apostolides to secure a vantage point. I was shown the film. It was not informative. It showed it as being fully light, but a video camera will adjust for fading light. Mr Tyrimos asked Mrs Orams in English if she was Mrs Linda. When she said that she was, he told her that he had some papers for her. He did not say who he was. He put them into her hand. They were in Greek which she does not know. She asked him who he was and what were the papers. He did not answer at first. Then he said that he did not know what they were, and that he did not speak Greek but only English and Turkish. He said he was just the messenger. All of that was untrue. Then he produced a pen and asked her to sign for them. Mrs Orams was alarmed by what was happening. Her husband was not there but on the way to the airport returning to England. She pretended that he was present and said that she would fetch him. Her intention was to go into the house and close the door, and then to telephone a friend. But when she said she would fetch him, Mr Tyrimos said ‘No problem, no problem’, and the two men left hurriedly. No doubt their conduct was partly a reflection of nervousness at being where they were with the task they had. Mrs Orams realized that the papers they had left with her were of a legal and official nature. She did not know that she had been served with a writ. All that was in English were her name and her husband’s name and their address. 45. The next day, Wednesday, Mrs Orams was able to speak to her husband. They decided he should remain in England and she would deal with the matter. She began by trying to speak to her Turkish builder, which she was not able to do until Friday, 29 October. He agreed to try and find someone to help. On Monday, 1 November, he advised her to seek advice from a Maronite lawyer, Mr Liatsos. Mrs Orams was not able to obtain an appointment to see him until the next day, Tuesday. He translated the bones of the writ. But he said he was not qualified to act for her in the action. He suggested she go to the lawyer who had acted in the purchase of the land. That was Mr Osman. She found he had effectively retired and his practice had been taken over by his daughter. She was able to see her the next day only to be told that she was not qualified to work in the 558

The United Kingdom courts of the Republic of Cyprus. Mrs Orams was finally recommended to Mr Gunes Mentes. He could not see her until 5 p.m. on Friday 5 November. He explained to her for the first time that there was a time limit on entering an appearance, namely 10 days. He said that he would have the writ translated and would attend at the District Court on the following Monday to enter an appearance. Mrs Orams gave Mr Mentes a written retainer in English. He did not in fact attend at court until Tuesday 9 November. He has not explained why that was. A judgment in default had been entered by Mr Candounas on behalf of Mr Apostolides on that day. Mr Mentes discovered that when he went to the Registrar’s office. The Registrar refused to accept his retainer because it was in English. 46. The next question is how should the court approach the issue of whether the writ was served ‘in sufficient time and in such a way as to enable [the defendant] to arrange for his defence’. Does the court take account of the circumstances relating to service and perhaps the defendant’s situation, and then ask whether the time available, here 13 days, should have been sufficient? Or should the court also take account of such difficulties as actually occurred? What on any view must be left out of account is time lost through the inaction of the defendant, or his lawyer, or a failure to act as might be reasonably expected of him in the circumstances. 47. No decisions were cited which deal directly with that question, but there are decisions which may throw light upon it. 48. It is as well, however, to begin with the Jenard Report on the Brussels Convention. The Report states with regard to Article 27.2: ‘Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection. First, the document must have been duly served. In this connection reference must be made to the internal law of the State in which the judgment was given, and to the international conventions on the service abroad of judicial instruments. … Secondly, even where service has been duly effected, recognition can be refused if the court in which recognition is sought considers that the document was not served in sufficient time to enable the defendant to arrange for his defence.’ 49. In Klomps v. Michel [1981] ECR 1593 the proceedings were started by the service of an order for payment on the alleged debtor in the Republic of Germany. That was done by lodging the order at the post office with written notice of it being left at the address supplied for the debtor by the creditor. German law then allowed three days or until the court issued an order for its enforcement, there six days, for the debtor to respond. The debtor then had a week in which to lodge an objection to the enforce559

Part II: Cyprus–Europe Relations (1983–2006) ment order. In fact four months went by before the debtor objected, and he claimed that he habitually resided in the Netherlands. His objection was dismissed as out of time and the German court held that according to German law he was habitually resident at the address were service was effected. The creditor sought to enforce the order against the debtor in the Netherlands. The Dutch court referred the issues arising under Article 27.2 of the Brussels Convention to the European Court. The court held that Article 27.2 was intended to ensure that a judgment was not recognised under the Convention if the defendant had not had an opportunity of defending himself in the original court. It held that the court in which enforcement was sought ‘must take account only of the time, such as that allowed under German law for submitting an objection to the order for payment, available to the defendant for the purpose of preventing the issue of a judgment in default’. It held that the dismissal by the German Court of the objection to the enforcement order as inadmissible on the ground that the objection was out of time meant that the decision given in default remained intact. It was then for the Dutch court as the court where enforcement was sought to make the examination prescribed by Article 27.2. It stated that a decision as to service by the German court left it to the Dutch court to make a factual examination whether the time was sufficient to enable the defendant to arrange for his defence. The Dutch court had asked whether it was sufficient that the document reached the habitual residence of the defendant in good time or must it also be examined whether service there was sufficient to ensure that the document would reach the defendant in good time. The European Court stated that the Dutch court was asking whether the enforcing court must proceed on the assumption that a defendant is able to prepare his defence as soon as the document which instituted the proceedings reaches his habitual residence. The court held: ‘19. In this connection it must be stated first of all that Article 27, point 2, does not require proof that the document which instituted the proceedings was actually brought to the knowledge of the defendant. Having regard to the exceptional nature of the grounds for refusing enforcement and to the fact that the laws of the Contracting States on the service of court documents, like the international conventions on this subject, have as their objective the safeguarding of the interests of defendants, the court in which enforcement is sought is ordinarily justified in considering that, following due service, the defendant is able to take steps to defend his interests as soon as the document has been served on him at his habitual residence or elsewhere. As a general rule the court in which enforcement is sought may accordingly confine its examination to ascertaining whether the period reckoned from the date on which service was duly effected allowed the defen560

The United Kingdom dant sufficient time to arrange for his defence. Nevertheless the court must consider whether, in a particular case, there are exceptional circumstances which warrant the conclusion that, although service was duly affected, it was, however, inadequate for the purposes of enabling the defendant to take steps to arrange for his defence and, accordingly, could not cause the time stipulated by Article 27, point 2, to begin to run. 20. In considering whether it is confronted with such a case the court in which enforcement is sought may take account of all the circumstances of the case in point, including the means employed for effecting service, the relations between the plaintiff and the defendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default. If, for example, the dispute concerns commercial relations and if the document which instituted the proceedings was served at an address at which the defendant carries on his business activities the mere fact that the defendant was absent at the time of service should not normally prevent him from arranging his defence, above all if the action necessary to avoid a judgment in default may be taken informally and even by a representative. 21. The reply to that part of the fourth question should therefore be that the court in which enforcement is sought may as a general rule confine itself to examining whether the period reckoned from the date on which service was duly effected allowed the defendant sufficient time for his defence. However the court is also required to consider whether, in a particular case, there are exceptional circumstances such as the fact that, although service was duly effected, it was nevertheless inadequate for the purpose of causing that time to begin to run.’ The reference in paragraph 19 to ‘exceptional circumstances’ relates to the court’s ability to consider the circumstances of service in the context of whether the defendant had sufficient time to arrange his defence. 50. In Debaecker v. Bouwman [1981] ECR 1779 Mr and Mrs Debaecker had let a property in Antwerp to Mr Bouwman, who left without giving notice or a forwarding address. He had established his residence at the premises and was registered as a citizen of Antwerp. He was served with the writ by service at the police station in Antwerp in accordance with Belgian law. Later he terminated the tenancy by a letter to the claimants’ lawyer and gave a new address. A judgment in default of appearance was obtained subsequently. It was sought to enforce the judgment in the Netherlands. The European Court stated that:

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Part II: Cyprus–Europe Relations (1983–2006) ‘[Article 27.2] takes account of the fact that certain Contracting States make provision for the fictitious service of process where the defendant has no known place of residence. The effects that are deemed to follow from such fictitious service vary and the probability of the defendant’s actually being informed of service, so as to give him sufficient time to prepare his defence, may vary considerably, depending on the type of fictitious service provided for in each legal system.’ The court later stated: ‘19. … it should be pointed out first that, if the circumstances to be taken into account were confined to those which were known at the time of service, there would be a danger of interpreting the requirement of service in sufficient time in such a restrictive and formalistic manner that it would in fact coincide with the requirement of due service, thus negating one of the safeguards laid down by the Convention for protection of the defendant. 20. Accordingly, in order to ascertain whether the requirement of service in sufficient time was fulfilled – that requirement being laid down precisely in order to ensure that the defendant’s rights are effectively protected – regard must be had to facts which, although occurring after service was effected, may nonetheless have had the effect that service did not in fact enable the defendant to arrange for his defence. 21. That view finds further support in Klomps v. Michel, where the Court ruled that, in ascertaining whether service was effected in sufficient time, a court might take account ‘of all the circumstances of the case in point, including the means employed for effecting service, the relations between the plaintiff and the defendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default’. An appraisal of the steps which had to be taken in order to prevent judgment from being given in default is bound to concern factors arising after service was effected. 22. The answer to Question 2 (a) must therefore be that the Court in which enforcement is sought may, in examining whether service was effected in sufficient time, take account of exceptional circumstances which arose after service was duly effected.’ The court held that, if a defendant is subsequently notified at his new address, the plaintiff thereby ensured that the change of address was not an exceptional circumstance which prevented the service at the former address from being regarded as having been effected in sufficient time. As to the behaviour of the defendant the court stated: 562

The United Kingdom ‘Thus the defendant’s behaviour cannot automatically rule out the possibility of taking into account exceptional circumstances which warrant the conclusion that service was not effected in sufficient time. Instead, such behaviour may be assessed by the court in which enforcement is sought as one of the matters in the light of which it determines whether service was effected in sufficient time. It will therefore be for that court to assess, in a case such as the present, to what extent the defendant’s behaviour is capable of outweighing the fact that the plaintiff was apprised after service of the defendant’s new address.’ 51. The decision of the European Court in Pendy Plastic Products BV v. Pluspunkt Handelsgesellschaft mbH [1982] ECR 2723 emphasises that it is for the court from which enforcement is sought to apply what is now Article 34.2 regardless of any view of the court first giving the judgment. 52. The case of Krombach v. Bamberski [2000] ECR I–1935 was concerned with the enforcement in Germany of a civil order for compensation made in connection with criminal proceedings in France. Mr Krombach was ordered to attend the hearing but did not do so and under the contempt procedure of the French Code of Criminal Procedure could not be represented by counsel. The main issue for the European Court was whether the inability of Mr Krombach to be heard could be a matter of public policy entitling the German court in which enforcement was sought to decline to recognise the judgment. It held that it could. The judgment contains the statement that Article 27 of the Convention – now Article 34 of the Regulation, ‘must be interpreted strictly in as much as it constitutes an obstacle to the attainment of one of the fundamental objectives of the Convention.’ It is important to have in mind also that a number of cases emphasise that the purpose of Article 34.2 (or its predecessor) is to ensure that a defendant has an opportunity to defend himself before the court first giving the judgment: see, by example, Klomps, paragraphs 7 and 9. That is an important principle, which must be respected. 53. I consider that the circumstances relating to service on Mrs Orams were exceptional in the sense of paragraph 19 of the judgment of the European Court in Klomps and so should be taken into account. 54. I have concluded in the light of the wording of the Article and the above authorities that in the circumstances of this case it is appropriate to have regard to the manner in which service was effected, and, in general terms, the situation in which Mrs Orams was then placed, in order to consider whether the thirteen days which elapsed were sufficient. It is relevant that she was not told what the writ was but was lied to by the process server in the presence of an employee of Mr Apostolides’s lawyer. It is relevant that the writ was in Greek, a language that it was most unlikely 563

Part II: Cyprus–Europe Relations (1983–2006) she would understand. Until Mrs Orams discovered that what she had been served with was a writ, she had no reason to think that any particular action from her was required, and until she had found a lawyer to inform her she did not know that she had to enter an appearance within a limited period. It is relevant that it was served on her in the TRNC and I should take account of the reality of that for this purpose. It is relevant that in the TRNC there are now few persons who can read Greek. It is relevant that she had to find a lawyer who could act for her in the District Court of Nicosia. It was put to Mrs Orams in crossexamination that she could have come to Nicosia to find a lawyer there. She answered that ‘feelings are so strong out there, that was not a course I would have considered taking. I have felt that – I would certainly not have been treated fairly over there. … I was not going into the lion’s den. … You do not go into the enemy camp.’ That was Mrs Orams’s offthe-cuff response. The possibility of animosity between those on the two sides of the line which divides Cyprus should not be forgotten. It is apparent from the evidence before me that the case has in fact given rise to strong feelings. While it was not investigated in the evidence, there must be a question of how easy it would have been for Mrs Orams to instruct a Greek Cypriot lawyer in the south, had she tried to do so. 55. On the other hand it may well not be appropriate to examine what Mrs Orams, and later Mr Mentes, actually did during the 13 days which were available. The question may be whether the period should have been sufficient. This is not made clear in Debaecker. 56. I do not think that the period to be allowed in accordance with Article 34.2 should be taken as the minimum period which a defendant might need to enter an appearance. It should be a reasonable period taking account of the possibility that difficulties may arise along the way. Thus a defendant served with English proceedings in England has 14 days in which to acknowledge service although it should ordinarily be possible to do so more quickly. That is extended to 21 days in respect of Scotland, the Republic of Ireland, Northern Ireland and France. (The period for Cyprus is of little relevance but, for the curious, it is 31 days.) 57. I have concluded that the period of 13 days was not here sufficient for the purpose of Article 34.2. I reach that conclusion on the basis of the facts relating to the service of the writ and Mrs Orams’ position as some one in northern Cyprus. I have elaborated those factors. I do not think that it is as answer, as Mr Beazley suggested, that if Mr Mentes had gone to the court on Monday, 8 November, he could have entered an appearance and prevented the default judgment. I do not know why Mr Mentes did not do as he had told Mrs Orams he would: his affidavit does not refer to it. His day may have unexpectedly developed so he did not have time: I do not know, but I am not prepared to assume that he had no reason at all. But this approach assumes that it must be done as 564

The United Kingdom quickly as possible, which I consider is the wrong approach, as I have stated. Are Mr and Mrs Orams barred from relying on Article 34.2 by reason of their application to have the default judgment set aside and its failure? 58. Article 34.2 does not refer to the position where a defendant is able to and does apply to have the default judgment set aside but the application fails. That is what happened here. If the defendant succeeds in the application, there will be no judgment against him and no enforcement, and he will not need the Article. If he fails, on this view he cannot rely on the Article. A defendant might fail in an application to have a default judgment set aside simply on the ground that he should have entered an appearance in time. If the defendant has made out the second requirement of Article 34.2 to the satisfaction of the enforcing court, that failure should not then prevent the defendant relying on the Article. It is where the defendant fails in his application because he does not establish a sufficient defence to the claim that he might lose his right to rely on the Article. He has then had an opportunity to defend. If Mr Beazley is right, Article 34.2 prevents recognition of a default judgment only where the second requirement is made out and either the defendant had no opportunity to apply to ‘challenge the judgment’ or he had an opportunity but failed on the ground not that he had no sufficient defence but because he failed to enter an appearance when he should have done. There are authorities which are relevant to the issue, but they are not decisive. 59. In Minalmet GmbH v. Brandeis Ltd [1992] ECR I–5661 a judgment in default of appearance was obtained in the English High Court against a German company. There was a dispute about service on the company in Germany. The European Court held that, if a defendant was not duly served, that was a sufficient ground under Article 27.2 for refusing to recognise the judgment. In the course of its judgment the court stated: ‘14. It follows that a decision given in default of appearance in a contracting State must not be recognised in another contracting State if the document instituting proceedings was not duly served on the defaulting defendant. 15. That interpretation is not invalidated by the fact that the defendant had notice of the judgment given in default and did not avail himself of the remedies provided for under the procedure of the State where it was delivered. … 18. Furthermore, as the Court held in its judgment in Case 166/80 Klomps [1981] ECR 1593, paragraph 9, Article 27(2) of the Brussels Convention is intended to uphold the rights of the defence and ensure that a judgment is not recognized or enforced under the Con565

Part II: Cyprus–Europe Relations (1983–2006) vention if the defendant has not had an opportunity of defending himself before the Court first seized. 19. It must be emphasized in that regard that, as is apparent from the provision at issue, the proper time for the defendant to have an opportunity to defend himself is the time at which proceedings are commenced. The possibility of having recourse, at a later stage, to a legal remedy against a judgment given in default of appearance, which has already become enforceable, cannot constitute an equally effective alternative to defending the proceedings before judgment is delivered. 20. As correctly pointed out by the national court, once a judgment has been delivered and has become enforceable, the defendant can obtain suspension of its enforcement, if suspension is appropriate, only under more difficult circumstances and may also find himself confronted by procedural difficulties. The possibility for a defaulting defendant to defend himself is thus considerably diminished. Such a result would run counter to the purpose of the provision in question.’ 60. In Hendrikman v. Magenta Druk & Verlag Gmbh [1996] ECR 1–4943 Mr and Mrs Hendrikman who were resident at The Hague were sued in Germany and a judgment was obtained against them. They asserted that the goods in respect of which they were sued had been ordered by two persons without their authority, and that the same two persons had appointed lawyers to act for them in the German proceedings, again without authority. Answering questions posed by the Dutch court in which enforcement was sought, the European Court held that, where proceedings are initiated against a person and a lawyer appears without his authority, he is powerless to defend himself and any judgment must be regarded as in default of appearance. It was for the Dutch court to determine whether those exceptional circumstances existed. That was not affected by the fact that under German law Mr and Mrs Hendrikman were entitled to apply within a month of the service of the judgment to have it annulled on the ground of lack of representation. The court stated in that connection: ‘19.That conclusion is not affected by the fact that under Paragraphs 579(4) and 586 of the German Code of Civil Procedure, Mr and Mrs Hendrikman were entitled to apply, within one month of service of the judgement and order, for their annulment on the ground of lack of representation. 20. The proper time for a defendant to have an opportunity to defend himself is the time at which proceedings are commenced. The possibility of having recourse, at a later stage, to a legal remedy against a judgment given in default of appearance, which has already become 566

The United Kingdom enforceable, cannot constitute an equally effective alternative to defending proceedings before judgment is given (see Case C–123/91 Minalmet v. Brandeis [1992] ECR I–5661, paragraph 19)’ 61. Mr Beazley relied on the decision of the Supreme Court of the Canton of Zurich delivered on 29 September 2003 in Akay v. Motorola Credit Corporation, where the court considered the enforceability of a freezing order made by the English High Court against a Swiss corporation. The relevant Convention was the Lugano Convention, which is in relevant respects in the same terms as the Brussels Convention. It held that the fact that the defendant could apply and had applied to the English court to have the order set aside overcame the difficulty that it had been originally made without notice to the defendant. The court referred to the persuasive authority of the decisions of the European Court. It cited Klomps and Calzaturificio Brennero v. Wendel GmbH [1984] ECR 3971. In my view, neither support the court’s conclusion. 62. The position is stated in the Fourth Supplement to the Thirteenth Edition to Dicey & Morris, Conflict of Laws, as follows: A judgment in default of appearance may retain this character even if the defendant later seeks, unsuccessfully, to set it aside. The opportunity for a legal remedy after the making of the order is not equivalent, but is inferior, to having the right to be heard before the order is made. It is not therefore an adequate substitute; and the judgment will remain as one given in default of appearance. Minalmet and Hendrikman are cited. 63. The following passage appears in Briggs and Rees, Civil Jurisdiction and Judgments, Fourth Edition, pages 509, 510: ‘Article 27 (2) of the Conventions had been held to take no account of the fact that the defendant knew perfectly well of the proceedings or of the judgment, and knew that he had the right to apply to have the judgment set aside, but elected to do nothing. It followed that, if the judgment was born flawed, it remained flawed if the defendant chose to ignore it: the best defence was to do nothing. But this behaviour by defendants could produce some distinctly unattractive results; and condition (c) now places on the defendant the practical onus of challenging the judgment, so that if he did not do so when he knew that he could, the judgment may be purged of its defect and become entitled to recognition. It is expected that if the judgment is to be recognised, by reference to condition (c) [failure to take opportunity to challenge the judgment], it will still have to be shown that the defendant was placed under no substantial handicap at the point when he commenced proceedings to challenge the judgment, and that his 567

Part II: Cyprus–Europe Relations (1983–2006) position had not been materially weakened by the fact that default judgment had been entered against him. For if he had the right to challenge the judgment, but faced a struggle uphill which he would not have had had he been served in time to defend himself, he will have been damaged by orders made in proceedings in which he could not have played a part; and to accept this would contradict a fundamental principle of procedural fairness aimed to be secured by the Judgments Regulation. But a defendant served with a freezing injunction obtained without notice to him may well find that the judgment becomes entitled to recognition if he fails to move smartly in commencing proceedings to have it set aside.’ The decision in Hendrikman is considered in the following paragraph but as an authority on ‘default of appearance’. The passages cited above from it and from Minalmet are not mentioned. 64. I accept the logic of Mr Beazley’s submission to the extent that a defendant who has had an opportunity to defend the action by applying to set aside a default judgment without being disadvantaged in that process by the existence of the default judgment should have no complaint. That is something which could have been expressly provided in the Brussels Convention. It could equally have been provided in Regulation 44/2001. It is the more remarkable that it is absent from the Regulation because the additional words refer to the defendant taking proceedings to challenge the default judgment. The Brussels Convention was signed in 1968. The only dicta of the European Court of which I am aware are those cited above. They suggest that a default judgment which would otherwise be unenforceable cannot be cured by subsequent proceedings. There is nothing the other way. The reason behind those dicta is that the defendant will be at a disadvantage in the proceedings to challenge the default judgment. That may be a slight disadvantage or it may be a greater disadvantage. It seems in the present case, if it is assumed that Mr Apostolides would otherwise have applied for summary judgment under Order 14, it is broadly the difference between the application to set aside and an application for summary judgment and so one of burden of proof, though there are passages in the judgment of the District Court which suggest that may be too simple a view. The object of the Regulation is to provide a simple scheme for the ‘free movement of judgments’. It would be an additional complication if Mr Beazley was right, as the passage cited from Briggs and Rees shows. I am persuaded that the better view is that the Article is to be applied in accordance with its express words and no more: there is not an additional requirement as Mr Beazley submits. 65. Miss Booth submitted that the default judgment remained a default 568

The United Kingdom judgment because the order of 19 April 2005 took the form of dismissing the application to set the default judgment aside instead of making a fresh order in the form of the judgment. That, she submitted, was an answer even if Mr Beazley were right. I would not have accepted that submission. The matter should be considered as one of substance and not of form. 66. I therefore hold that Article 34.2 requires that the judgments shall not be recognised. The entry of appearance and Article 24 67. Article 24 of Regulation 44/2001 provides: ‘24. Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.’ 68. Mr Beazley submitted that there was jurisdiction by reason of this Article because an unconditional appearance had been entered. It is clear, however, that it was always the intention of Mr and Mrs Orams to contest the jurisdiction of the District Court as their subsequent application shows. That brings them within the second sentence of the Article. It is no matter that they also intended to raise a defence on the merits: I refer to Briggs and Rees, pages 92 and 93. Outcome 69. The outcome is that the appeals of Mr and Mrs Orams are allowed.

569

DOES INTERNATIONAL LAW PERMIT CYPRUS TO JOIN THE EU? ________________________________________________________

54. The Cypriot Government’s Application for Membership to the European Community 3 July 1990 Mr President, On behalf of the Government of the Republic of Cyprus, I have the honour to inform Your Excellency that Cyprus hereby submits its application to become a member of the European Economic Community, in accordance with the provisions of Article 237 of the Treaty establishing that Community. George Iacovou HE Mr Gianni de Michelis President in office of the Council of the European Communities. Brussels.

55. The legal controversies surrounding the Greek Cypriot application to the EU: opinion of Professor M. H. Mendelson QC on the appli47 ation of the Republic of Cyprus to join the EU 1. I have been asked for my opinion in relation to the application by the Greek Cypriot authorities in Cyprus to join the European Union. 2. In summary, my opinion is that, on a proper construction of the relevant 571

Part II: Cyprus–Europe Relations (1983–2006) treaties and related instruments, the Greek Cypriot Administration is not entitled in international law to apply to join or, having applied, to join, the European Union whilst Turkey is not a member. Furthermore, as members of the EU and parties to the agreements in question, Greece and the United Kingdom are under an obligation to seek to prevent such accession. Moreover, as a matter of the law of the European Community, there are serious legal obstacles to such accession. A. Basic structure of the Republic of Cyprus 13. This document provides the framework for the future constitution of the future Republic of Cyprus (‘RC’). Article 1 provides that the President shall be Greek and the Vice-President shall be Turkish, elected by their respective communities by universal suffrage. 14. Article 8 provides that ‘The President and the Vice-President, separately and conjointly, shall have the right of final veto on any law or decision concerning foreign affairs, except the participation of the Republic of Cyprus in international organizations and pacts of alliance in which Greece and Turkey both participate, or concerning defence and security as defined in Annex I.’ The grammatical structure of this provision is somewhat peculiar, and some clarification can be obtained by comparing it with the French text of the draft Basic Structure in the Zurich Agreement; ‘Le Président et le Vice-Président auront séparément et conjointement le droit de veto définitif sur toute loi ou décision se référant aux affaires étrangéres sauf la participation de la République de Chypre à des organisations internationales et pactes d’alliance dont la Grèce et la Turquie font toutes deux parties, à la défense et à la sécurité telles que définies dans l’annexe I.’ This confirms that the Vice-President (as well as the President) is to have a power of veto over all question of foreign affairs except the participation of Cyprus in international organizations in which both Turkey and Greece are members. In other words, he retains his veto over membership of organizations of which only one of the two States is a member – which, of course, includes the European Union. 15. Article 21 provides: A Treaty guaranteeing the independence, territorial integrity of the constitution of the new State of Cyprus shall be concluded between the Republic of Cyprus, Greece, the United Kingdom and Turkey. A Treaty of military alliance shall also be concluded between the Republic of Cyprus, Greece and Turkey. These two instruments shall have constitutional force. (This last paragraph shall be inserted in the Constitution as a basic article.) 16. Article 22 provides as follows: ‘It shall be recognised that the total or partial union of Cyprus with any other State, or a separatist independence for Cyprus (i.e. the partition of Cyprus into two independent states), shall be excluded.’ 572

Does international law permit Cyprus to join the EU? 17. Article 23 provides that: The Republic of Cyprus shall accord most-favoured nation treatment to Great Britain, Greece and Turkey for all agreements whatever their nature. This provision shall not apply to the Treaties between the Republic of Cyprus and the United Kingdom concerning the bases and military facilities accorded to the United Kingdom. 18. Article 27 provides that all of the Articles in the Basic Structure ‘shall be basic articles of the Constitution of Cyprus’. B. Treaty of Guarantee 19. The second document whose terms were agreed at the 1959 London Conference was the Treaty of Guarantee between the Republic of Cyprus of the one part, and Greece, the United Kingdom and Turkey of the other. It should be noted, however, that the actual treaty itself was signed at Nicosia and came into force only on 16 August 1960, the date of independence. The treaty was drawn up in English and French, both texts being equally authoritative. In some respects, the French casts further light on the English, and in these cases I will quote both. 20. In Article I, The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution. It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited all activity likely to promote, directly or indirectly, either union with any other State or partition of the Island. (Elle assume l’obligation de ne participer intégralement ou partiellement à aucune union politique ou économique avec quelque Etat que ce soit. Dans ce sens elle déclare interdite toute activité de nature à favoriser directement ou indirectement aussi bien l’union avec tout autre Etat que le partage de l’Ile.) 21. In Article II, Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article 1 of the present Treaty, recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution. Greece, Turkey and the United Kingdom likewise undertake to prohibit, so far as concerns them, any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island. 22. Article III, which was not included in the original Zurich version of the Treaty of Guarantee but was included in the version finally adopted in 1960, contains an undertaking by the RC, Greece and Turkey to respect the British sovereign base areas and a guarantee by them of the use and 573

Part II: Cyprus–Europe Relations (1983–2006) enjoyment by the United Kingdom of the rights secured by the Treaty of Establishment concluded on the same date between the UK on the one hand, and the RC, Greece and Turkey on the other. 23. Article IV of the Treaty of Guarantee provides: In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions. In so far as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty. C. Treaty of Alliance 24. This agreement, between the RC, Turkey and Greece, seems of small relevance to the present question. It may, however, be noted that, in Article 2, the Parties ‘undertake to resist any attack or aggression, direct or indirect, directed against the independence and territorial integrity of the Republic of Cyprus’. The Constitution 34. The Constitution which was drawn up reflects and expands on the Zurich and London Agreements, especially the Basic Structure. Article 1, in providing for a Greek Cypriot President and a Turkish Cypriot VicePresident, mirrors the corresponding Article in the Basic Structure, whilst Article 50 implements Article 8, in providing (in pertinent part) that ‘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. This is complemented by Art. 169, which provides that the Council of Ministers shall be responsible (subject, in most cases, to the agreement of the House of Representatives) for the conclusion of international agreements, but makes a saving in Art. 57 (3) by providing that if any decision made by the Council of Ministers is of the type referred to in Art. 50, the President and/or Vice-President have a right of veto, which they are to exercise within four days of the date when the decision was transmitted to their respective offices. Article 170 implements Article 23 of the Basic Structure. It reads in pertinent part: ‘(1) The Republic shall, by agreement on appropriate terms, accord mostfavoured-nation treatment to the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland for all agreements whatever their nature might be.’ 36. Article 179 provides that the Constitution shall be the supreme law of the 574

Does international law permit Cyprus to join the EU? Republic and that no law or decision of the House of Representatives, the Communal Chambers, or any other authority shall be repugnant to, or inconsistent with, any of its provisions, whilst Art. 180 provides for adjudication of constitutional questions by the Supreme Constitutional Court. The latter article, as well as providing for the reconciliation of conflicts between the texts in the two official languages, goes on to say that ‘In case of ambiguity any interpretation of the Constitution shall be made by the Supreme Constitutional Court due regard being had to the letter and spirit of the Zurich Agreement … and of the London Agreement.’ 37. Article 181 implements Article 21 of the Basic Structure by providing that the Treaties of Guarantee and Alliance shall have constitutional force. 38. Although, under Article 182 (2) and (3), most provisions of the Constitution can be amended or repealed by a majority vote comprising at least two-thirds of the total number of the Representatives belonging to the Greek Community and a like number of Representatives from the Turkish Community – itself a formidable barrier to amendment – there is an important exception in para (1). This implements Article 7 of the Basic Structure, and provides that the Basic Articles (set out in Annex III of the Constitution) ‘which have been incorporated from the Zurich Agreement … are the basic Articles of this Constitution and cannot, in any way, be amended, whether by way of variation, addition or repeal’. All of the articles mentioned in the present survey of the Constitution are included in this Annex, save for Articles 169 and 179. 39. Article 185 provides that the territory of the Republic ‘is one and indivisible’ and goes on to state in paragraph (2) that ‘The integral or partial union of Cyprus with any other State or the separatist independence (sic) is excluded.’ This implements Article 22 of the Basic Structure, which defines ‘separatist independence’ as ‘the partition of Cyprus into two independent States.’ THE LAW The relevant international and national law 77. The duties of the RC and the Guarantor States turn on the proper construction of the London Agreements (in which term I include the Treaties subsequently formally concluded at Nicosia on the basis of what was agreed in London in February 1959 – itself largely on the basis of the Zurich Agreements), together with the (original) Constitution of Cyprus. Before addressing their substantive provisions, it is necessary to consider a series of preliminary questions, relating to the initial validity and possible subsequent cessation of effect of the treaties. Are the treaties valid in international law? 78. Some commentators sympathetic to the Greek Cypriot view have sug575

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79.

80.

81.

82.

83.

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gested that the Zurich-London Agreements and the 1960 Treaties may not be valid in international law because they were imposed on the inhabitants of Cyprus, whose representatives did not have the opportunity of negotiating them. However, the facts outlined above demonstrate that the Greek Cypriot community was advised at an early stage of the details of the Zurich Agreement, and more importantly that they were actually involved in the negotiation of the London Agreement and the 1960 Treaties. For example, in the minutes of the Foreign Office meeting, the Greek Foreign Minister is recorded as advising that Archbishop Makarios had been informed of the Zurich Agreement on, inferentially, either the day of the signing of the Zurich Agreement or the following day; also, that the Archbishop would have the opportunity of reviewing the Zurich Agreement on the evening of 12 February. The London Conference commenced on 17 February 1959 and this was attended by Archbishop Makarios for the Greek Cypriots and Dr Fazýl Küçük for the Turkish Cypriots. Further, the London Agreement comprises a number of documents including a ‘Declaration made by the Representative of the Greek-Cypriot Community on February 19, 1959’. As stated above, Archbishop Makarios declared in this that he had examined the Zurich Agreement and the Declarations of 17 February 1959 and accepted these as the agreed foundation for the final settlement of the problem of Cyprus. In addition, Archbishop Makarios signed or initialled all the documents comprising the London Agreement, including the Treaties of Alliance and Guarantee, with the exception of the Memorandum of the Conference (which was signed by the Premiers of the Guarantor Powers only) and the Agreed Measures (which was initialled by the Foreign Ministers of the Guarantor Powers only). According to the Agreed Measures, a Joint Committee in London was to prepare the final treaties ‘giving effect to the conclusion of the London Conference’. This was to consist of a representative from each of the Parties including one from the Greek Cypriot community (as well as one from the Turkish Cypriot community). The Joint Committee took fifteen months to complete negotiations, which took place in both London and Cyprus. This strongly suggests that the Greek Cypriots had the opportunity of thoroughly negotiating these Treaties. As a result, the wording of the Treaties of Guarantee and Alliance were slightly amended. (There was no pre-existing draft of the Treaty of Establishment.) On 16 August 1960, the Treaties of Guarantee, Alliance and Establishment were signed in Nicosia; amongst the parties to sign it was Archbishop Makarios, who was by now President-elect. From the above, it does not seem to me to be arguable that the Treaties were imposed on the Greek Cypriot community without their consent. Admittedly, this consent may have been grudging: Archbishop Makarios

Does international law permit Cyprus to join the EU? was at the time strongly in favour of enosis. According to the Greek Cypriot Press and Information Office, ‘the only reason the Cypriot people’s representatives signed them was because the sole alternative would have been the continued denial of independence and freedom, continued bloodshed and, possibly, the forced partition of Cyprus’. But just because the Greek community had to settle for something less than its ideal does not mean that it or its representatives were coerced within the narrow meaning of coercion to be found in, for instance, Articles 51 and 52 of the Vienna Convention of the Law of Treaties 1969. So far as I am aware, it has not been suggested that there were any acts or threats directed against the person of the Archbishop, nor the threat of force against the RC itself. Mere inequality of bargaining power does not constitute coercion. 84. It has also been argued that the Treaty of Guarantee is void because Article IV, in allowing for the unilateral use of force to maintain the status quo in Cyprus, conflicts with a rule of jus cogens (a peremptory norm of general international law) – that is, a norm accepted and recognised by the international community of States as a whole as a principle from which no derogation is permitted. Pausing here, it should be noted that there is considerable disagreement in the international community as to exactly what norms are comprised in this category. It has to be conceded, however, that the prohibition of the use of force against the territorial integrity or political independence of a State is a rule that definitely does fall into this category. 85. But the Vienna Convention is not retrospective, and before 1969 the very existence of jus cogens in international law was very much contested. Therefore, even if – for the sake of argument – the provisions permitting intervention would contravene a norm of jus cogens under present-day law, it by no means necessarily follows that Article IV of the Treaty of Guarantee – still less the Treaty as a whole – would have been avoided ab initio. It is true that Art. 64 of the Vienna Convention provides that ‘If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.’ But first, this does not retrospectively invalidate the treaty; and secondly, even if Art. IV of the Treaty of Guarantee became invalid as the result of a new rule of jus cogens, that Article could very possibly be severed from the rest of the Treaty, and it is Arts. I & II which are in issue here. 86. Furthermore, and very importantly, the Vienna Convention lays down a formal procedure to be followed in the event that a party to a treaty invokes a ground for impeaching its validity of that treaty. This procedure involves a formal notification in writing to the other parties to the treaty. Although the Greek Cypriot administration has from time to time made imputations about the London Agreements, and in particular the Treaty of Guarantee, so far as I am aware, no party has invoked this procedure or taken other formal steps. Indeed, in the case of Cyprus v. 577

Part II: Cyprus–Europe Relations (1983–2006) Turkey before the European Commission of Human Rights, the Greek Cypriot administration, whilst arguing that the Turkish intervention of 1974 violated the Treaty of Guarantee, appears to have accepted the validity of the Treaty as such. This is corroborated by its argument that the establishment of the Turkish Federated State of Cyprus ‘was incompatible with the constitutional structure of the Republic of Cyprus as envisaged by the Cyprus Constitution and contrary to the Treaties of Establishment and Guarantee.’ The Declaration adopted by the Turkish Cypriot Parliament on 15 November 1983 unequivocally states that the TRNC ‘shall continue to adhere to the Treaties of Establishment, Guarantee and Alliance’. 87. In any event, the three Guarantor States themselves do not appear to regard the London agreements as invalid. Turkey certainly does not, and indeed relied on the Treaty of Guarantee to justify its 1974 intervention. So far as Greece is concerned, although it maintains that the Constitution became unworkable, it has not, I am advised and so far as I know, taken the position that the London Agreements are invalid or not otherwise in force. Indeed, by arguing that the establishment of the TRNC is a violation of the 1960 agreements, and by emphasizing its special position as a ‘guarantor power with special legal responsibility regarding the Republic of Cyprus’ it evidently relies upon them. 88. The United Kingdom apparently does not question the validity of the treaties either. In 1979 the Government spokesman, in explaining why they recognized only one Government in Cyprus, relied expressly on the 1960 agreements. In 1987 Baroness Young, Minister of State at the Foreign and Commonwealth Office, confirmed to the Foreign Affairs Committee of the House of Commons that ‘We believe that the 1960 Treaty of Guarantee still applies in which we are a guarantor and continue to play that role.’ More recently, the acting head of the Southern European Department of the Foreign and Commonwealth Office swore an affidavit on 25 April 1994 in the case of R. v. The Commissioners for the Inland Revenue, ex parte Resat Caglar, in which he asked the Court to take into account ‘the obligations of the United Kingdom under the Treaty of Guarantee’. 89. The Security Council, too, has apparently recognized the validity of these agreements more than once. For instance, in Resolution 353 (1974) it pronounced itself ‘concerned about the necessity to restore the constitutional structure of the Republic of Cyprus, established and guaranteed by international agreement’, and in Resolution 541 (1983), it asserted that the declaration of independence by the TRNC was ‘incompatible with the 1960 Treaty concerning the establishment of the Republic of Cyprus and the 1960 Treaty of Guarantee’. In Resolution 774 of 26 August 1992, it endorsed, as ‘the basis for reaching on overall framework agreement’, the Secretary-General’s ‘Set of Ideas on an Overall Framework Agreement on Cyprus’ which, amongst other things, confirms the continuation in force of the 1960 Treaties of Guarantee and Alliance. 578

Does international law permit Cyprus to join the EU? 90. In conclusion, it appears therefore that an argument based on the invalidity of the London Agreements and the Treaties which resulted from them is unfounded. Have these Agreements been terminated? 91. Treaties may be terminated by either consent of the parties, or by virtue of a rule of law authorising their termination. Since there has been no agreement of all the parties to the termination of the Agreements, the only possible question is whether there is a rule of law authorizing such termination. 92. Three grounds of termination could theoretically require consideration: (1) material breach by one of the parties; (2) supervening impossibility of performance; and (3) fundamental change of circumstances. But in the circumstances of the present case it seems unnecessary to inquire further into whether any of these grounds are present here. The reason is that, as just indicated in relation to the alleged initial invalidity of the Treaties, none of the parties seems to have formally sought to terminate the treaties or withdraw from them on any of these grounds – not even the Greek Cypriot administration. And even if I were wrong about the position of the latter, the three Guarantor Powers have not taken this position but, as we have already seen, in fact continue to rely on the Agreements for various purposes. The same is true of the Security Council. 93. So far as the United Kingdom is concerned, to date the official position remains as I have described it above. Indeed, apart from legal considerations, it would be surprising if, even as a matter of policy, the British Government were to perceive it to be in its interest to change that approach, not least for the reason given by the House of Commons Foreign Affairs Committee in 1987. The interlocking nature of the founding treaties of the Republic of Cyprus effectively compels the United Kingdom Government to continue to subscribe to the Treaty of Guarantee if the whole edifice (including British sovereignty over the Sovereign Base Areas) is not to collapse. As the Greek Cypriot Foreign Minister so eloquently put it to us in evidence, ‘one thing Britain cannot do is to have à la carte application of parts of the Treaties only.’ The 1960 Constitution 94. The main points of the future constitution of Cyprus were contained in the Basic Structure agreed at Zurich, which was supplemented at the London Conference in 1959. As already indicated, that Conference also adopted ‘Agreed Measures’ providing (amongst other things) for a Joint Commission in Cyprus to complete a draft Constitution incorporating these articles and the relevant provisions of the other agreements reached in Zurich and London. The Joint Commission was to be made up of one representative from each of the parties to the London Agreement (except the UK). The Joint Commission took fourteen months to negotiate the 579

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95.

96.

97.

98.

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draft Constitution and made some amendments to what was agreed at the London Conference. The draft was signed on 6 April 1960 in Nicosia. The Constitution was given international standing by the Zurich–London Agreements, which the Greek Cypriot representative, Archbishop Makarios, declared he accepted as the ‘agreed foundation for the final settlement of the problem of Cyprus’ – and in particular by the Treaty of Guarantee. I analyse the relevant treaty provisions in the next section; but first, I consider the Constitution itself, for the regime which it establishes is what was guaranteed. The Constitution provides for political equality between the two communities, notwithstanding the numerical superiority of the Greek Cypriots. Accordingly, it contains many checks and balances to maintain this status quo, and is more complex and detailed than most constitutions of newly independent states. As we have seen, in 1963, Archbishop Makarios sought to amend the Constitution, including some unamendable provisions; and when the Turkish community withheld its (requisite) approval, he anyway purported to enact laws which were clearly incompatible with the Constitution, including its unamendable provisions. National constitutions are often not only amended in accordance with their terms, but also overturned by bloodless or bloody coups. If they are overturned, whatever the legality under the ‘old’ constitution, in practice, if the coup is successful, the new constitution comes to prevail. And international law does not in general prohibit such acts. However, the case of Cyprus is different. As we have seen, the basic structure of the constitution is guaranteed (and not just by the Guarantor Powers, but by the RC itself) in the Treaty of Guarantee and the Agreed Measures in particular. Furthermore, Article 182 and Annex III made certain articles, including those enshrining the bi-communal arrangements and that giving constitutional force to the Treaties of Guarantee and Alliance, unamendable ‘Basic Articles’. In short, the bi-communal structure of Cyprus was sanctified by ‘particular’ international law, binding on the various parties. But it is arguable that these arrangements also became part of general international law. There may also be similarities here to the status of Switzerland, whose permanent neutrality has long been recognized as part of the general ‘public law of Europe’. Indeed, the similarity is not just due to the fact that this status initially guaranteed by treaty a limited number of European powers; it extends to the reason for that permanent neutrality, which was in large part that, due to the different ethnic composition of the various cantons, if the Swiss Confederation did not maintain its neutrality in wars between or involving France, Italy or Germany, it risked being torn apart. The official position of the Greek Cypriot authorities with regard to the constitutional crisis of 1963 is that the Constitution ‘proved unworkable in many of its provisions and this made impossible its smooth implemen-

Does international law permit Cyprus to join the EU? tation.’ ‘They apparently maintain that they are continuing to operate the 1960 Constitution, subject to the doctrine of necessity. This is how they put it in the case of Cyprus v. Turkey. The Constitution of the Republic remains in force and is applied by the Government of Cyprus subject to the well established doctrine of necessity, i.e. to the extent that it is impossible to comply with some of its provisions that require the participation of the Turkish Cypriots, the Government has to take exceptional measures which, though not in conformity with the strict letter of the Constitution, are necessary to save the essential services of the State temporarily until the return to normal conditions so that the whole state might not crumble down.’ 99. This statement is, however, open to question. In the first place, the state of necessity seems to have been largely self-induced. Secondly, as a matter of constitutional law in common law countries, it is very controversial whether necessity is in fact a justification for violating the provisions of the constitution. Moreover, it is not just a question of domestic law: as we have seen, the constitutional settlement in this case was underpinned by valid and subsisting international commitments. Application of the relevant provisions of the Treaties and Constitution 100. On 4 July 1990, the authorities in Nicosia applied for accession to the (then) European Communities. The TRNC responded by sending to the Council of Ministers a Memorandum dated 12 July 1990, and a Supplementary Note dated 3 September 1990, setting out its objections to the application. 101. The European Commission handed down a favourable opinion on 30 June 1993. In its opinion, the Commission referred to the challenge to the application by the ‘de facto authorities of the northern part of the island’. It went on: these authorities rejected the right of the Government of the Republic of Cyprus to speak for the whole of Cyprus in such an approach. They based their position on the Guarantee Treaty and the wording of the 1960 Constitution, which grants the President and VicePresident (a Turkish Cypriot) a veto over any foreign policy decision, particularly any decision on joining an international organisation or alliance that does not count both Greece and Turkey among its members. They consider, accordingly, that in the prevailing circumstances the Community should not take any action on the application. The Commission dismissed these arguments by stating that: ‘The Community, however, following the logic of its established position, which is consistent with that of the United Nations where the legitimacy of the government of the Republic of Cyprus and non-recognition of the ‘Turkish Republic of Northern Cyprus’ are concerned, felt that the application was admissible.’ 102. There is no proper analysis of the Turkish Republic of Northern Cyprus (TRNC)’s argument, so it is unclear what exactly is the ‘logic of the 581

Part II: Cyprus–Europe Relations (1983–2006) Community’s established position’. What the Commission seems to have meant was that, having adopted a policy of non-recognition of the TRNC, it had to recognize the Nicosia authorities as alone entitled to represent the RC. Be that as it may, it appears, however, that the Commission’s main concern at this time was whether Cyprus met the European Community’s own requirements for membership, not whether there were any impediments to membership under the Treaties establishing the Republic, or the Republic’s own Constitution. 103. No further reference was made to these legal arguments in either the Council’s conclusion that it supported the Commission’s opinion on 4 October 1993, nor in the European Parliament’s resolution of 12 July 1995 endorsing the Commission’s opinion and the Council’s conclusions. 104. There are valid objections, however, to the application to join the European Union, based on the London, Zurich and Nicosia agreements, which I shall now discuss. 105. A very important provision in this regard is Article I (2) of the Treaty of Guarantee, by which ‘(The Republic of Cyprus) undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited all activity likely to promote, directly or indirectly, either union with any other States or partition of the Island.’ This language is certainly wide enough to cover the accession of the RC to the EU. • • •

Membership would amount to participation in whole, let alone in part, in an economic union. To the extent that the EU also constitutes a political union, this part of the undertaking would also be infringed. Membership would also be ‘likely to promote, directly or indirectly, union with’ Greece. The very name of the organization, the European Union, bears out the fact that it is about union between the members.

106. It might perhaps be objected that the text uses the singular ‘any State’ in two places, whereas the union in question would be with States. However, such an objection would be unfounded. Admittedly, what the framers were particularly concerned about was union with either Greece or Turkey – single States. Nevertheless, as a matter of drafting and the ordinary use of the English (and French) language, the singular usually includes the plural and ‘any State (whatsoever)’ is wide enough to encompass ‘any States (whatsoever)’. This interpretation also accords with common-sense. Suppose, for example, that Cyprus had joined an economic or political union whose only other members were Greece and, say, Malta. It is hard to believe that this would not have come very close to enosis, and sufficiently close for the draftsmen, if asked by the proverbial ‘officious bystander’, to have replied that they certainly 582

Does international law permit Cyprus to join the EU? intended to prohibit such a thing. It would be no answer to this point to observe that we are here dealing with a union involving fifteen other States, not two. Cyprus is far more closely connected to Greece politically, militarily, economically, ethnically, and geographically, than it is to any other member State, and this situation would no doubt continue after accession. Furthermore, it should be noted that in Article I (2) the Republic not only undertook to refrain from participating in any political or economic union: it even promised to refrain from ‘any activity aimed at promoting, directly or indirectly … union of Cyprus with any other State’. 107. It is not just the RC who gave undertakings in this regard. The counterpart of its undertaking in Art. I (2) is that of the three Guarantors, in Art. II (2). Having noted the RC’s undertakings, they ‘likewise undertake to prohibit, so far as concerns them (pour ce qui relève de’eux), any activity aimed at promoting, directly or indirectly, … union of Cyprus with any other State’. It follows, in my view, that the two Guarantors concerned, the UK and Greece, are under an obligation of their own to refrain from promoting Cyprus’ membership of the EU and, indeed, to use their veto to prevent it. 108. Various provisions of the Cyprus Constitution bear out this interpretation. It will be recalled that in Art. I of the Treaty of Guarantee, the RC undertook to ensure ‘respect for its Constitution’, whilst in Art. II, the three other parties guaranteed ‘the state of affairs established by the Basic Articles of its Constitution’. These Articles derive to a considerable degree from the Basic Structure agreed at Zurich and London, to which the RC, the three Guarantors, and the two Cypriot communities agreed. • •

Art. 185 (2) provides that ‘The integral or partial union of Cyprus with any other State … is excluded.’ Art. 170 provides in pertinent part that ‘The Republic shall, by agreement on appropriate terms, accord most-favoured-nation treatment to the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland for all agreements whatever their nature might be.’ This implements Art. 23 of the Basic Structure. It will be recalled that, at the London meeting of 12 February 1959 of the three Foreign Ministers, the question of its meaning was discussed. In reply to a question from Lord Perth, the Foreign Ministers of Turkey and Greece indicated that ‘The intention was to exclude more favourable bilateral agreements between Cyprus and countries other than the Three Powers, and also to avoid the possibility of either Greece or Turkey securing a more favourable position in Cyprus than the other – of Greece, for example, establishing a kind of economic enosis.’ The proposed entry of the RC into the EU would doubly violate the letter and spirit of this provision. In the first place, it would tend to encourage the kind of

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economic enosis with Greece which the drafters of the Zurich and London agreements plainly intended to prohibit. Secondly, there can be no doubt that, if Cyprus joined the EU, this would result in Greece and the UK receiving considerably more favourable treatment than Turkey, which is not a member. Article 50 implements Article 8 of the Basic Structure, in proving (in pertinent part) that ‘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 United Kingdom of Greece and the Republic of Turkey both participate.’ This question, too, came up at the Foreign Office meeting on 12 February 1959, albeit at that stage in connection with the proposed Art. I (2) of the Treaty of Guarantee. In response to the British Foreign Secretary’s question whether this provision would preclude membership in international associations – that is, intergovernmental organizations – such as a possible European Free Trade Area, ‘M. Zorlu and M. Averoff both made it clear that there would be no objection to Cypriot membership of international associations of which both Greece and Turkey were members, e.g. the (Universal) Postal Union, and any Free Trade Area’. The corollary is that there could well be objection to membership of an organization of which only one of these two was a member. It might perhaps be objected that the mechanism chosen to further this goal was the Vice-Presidential veto, but since there is no longer a (Turkish) Vice-President to wield the veto, the provision is a dead letter. But in my view, such an objection would not be valid. It seems that the main reason why there has not been such an official for some time is that, from 1963/4 onwards, he was prevented by the Greek Cypriots from acting. In any case, the Vice-President’s veto was but the mechanism by which the Turkish community could be assured that the Republic would not join an organization of which Greece alone was a member (and vice versa). In other words, it was clearly the intention to prohibit membership of organizations with this sort of partial membership, unless both communities agreed. It is quite clear from the above-mentioned TRNC Memorandum and supplementary Note to the EU that the Turkish community does indeed object. The interchange at the Foreign Office meeting also provides the clearest proof that the drafters of the Treaty of Guarantee understood the references in it to ‘union with any State’ to include States (in the plural), and specifically to include international organizations of States, of which the EU is, of course, a specimen. It will be noted that it was specifically in the context of proposed Article I (2) of the Treaty of Guarantee that the exchange took place.

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Does international law permit Cyprus to join the EU? 109. I therefore conclude that the application by the Greek Cypriot administration to join the EU is in breach of its treaty obligations, not to mention its purely domestic legal obligations; and, further, that any encouragement of such an application by Greece or the UK, or a failure to use their veto or any other necessary means to prevent its succeeding, would be a breach of the treaty obligations of those two States towards each other, towards Turkey, and towards the inhabitants of Cyprus as a whole. Does the constitution of the European Union permit or envisage applications such as the present one? 110. Article 10 of the Treaty on European Union reads: Any European state may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of admission and the adjustments to the Treaties on which the Union is founded which such admission entails shall be the subject of an agreement between the member States and the applicant State. This agreement shall be submitted for ratification by all Contracting States in accordance with their respective constitutional requirements. 111. ‘European’ is deliberately not defined, so as not to limit the frontiers of the European Union. 82 The Commission in its opinion said that Cyprus had ‘beyond all doubt’ a European identity and character. It is less convincing about whether or not the Nicosia authorities can claim to represent all the people of Cyprus and indeed the State of Cyprus, and undertake obligations on their behalf which it is able to perform. On the one hand the Commission advises that the member States of the European Union recognise the Nicosia Government as the only legitimate government representing the Cypriot people; but on the other, the Commission acknowledges the de facto partition of the island and separation of the communities, and the consequence that: the fundamental freedoms laid down by the Treaty, and in particular freedom of movement of goods, people, services and capital, right of establishment and the universally recognized political, economic, social and cultural rights could not today be exercised over the entirety of the island’s territory. These freedoms would have to be guaranteed as part of a comprehensive settlement restoring constitutional arrangements covering the whole of the Republic of Cyprus. 112. The European Court of Justice has itself highlighted the practical difficulties which stand in the way of effect being given to the principles to which the Commission referred. R. v. Minister of Agriculture, Fisheries and Food, ex. parte S. P. Anastasiou (Pissouri) Ltd. arose on a request from the English High Court of Justice for a preliminary ruling. It concerned the question of the certification of agricultural products originating in Cyprus, under the EEC–Cyprus Association Agreement. 585

Part II: Cyprus–Europe Relations (1983–2006) The goods in question originated in the TRNC, and the UK and the Commission argued that, in the circumstances obtaining in Northern Cyprus, Member States were obliged to accept movement and phytosanitary certificates emanating from the de facto authorities there, in order to prevent discrimination between nationals or companies of Cyprus. The Court recognized the practical difficulties, but in its Judgement held that this did not warrant a departure from the clear terms of the 1977 Protocol on the origin of products and administrative co-operation, when the Community and its members, and of course the Nicosia authorities themselves, did not recognize the TRNC. 113. The TRNC has argued that the Greek Cypriot Government has no authority to represent the whole of the country, or the Northern part of it. But aside from that, there can be little doubt that the Anastasiou case is symptomatic of the practical and legal problems that can arise if the RC is admitted to the EU. The Nicosia Government will in many respects not be in a position to fulfil its undertakings towards the other Members; and the other Members may well experience practical difficulties in fulfilling their obligations towards Cyprus as a whole. Moreover, the EU is not only about the reciprocal rights and duties of States: it is also about individual rights of the citizens of the Union, and in that regard, too, there could well be very serious difficulties. 114. No member has yet been admitted to the EU whose writ did not run over virtually the whole of its territory. But the Greek Cypriot administration is unable to exercise its authority over about one-third of the territory which it claims to represent. The difficulties to which this could give rise would be unprecedented in the history of the Union. 115. In its Opinion, the Commission frankly recognized these difficulties. But its solution was to press on regardless. It seems to hope that, by agreeing that the Greek Cypriot administration is eligible for admission, it will assist the Security Council or otherwise contribute to the political solution of the Cyprus problem. Opinions may differ as to whether the EU’s action will prove a positive contribution: the opposite could turn out to be the case. But confining ourselves to the more strictly legal domain, what can be said with confidence is that, if the EU went so far as to admit the RC before a political solution had been reached, the technical difficulties are likely to be very great indeed. SUMMARY AND CONCLUSIONS 116. The Treaty of Guarantee of 1960, along with its associated instruments, strikes a carefully constructed balance between the interests of the two Cypriot communities, and also between the three States with a particular interest in Cyprus: Greece, Turkey and the United Kingdom. It is the basis of the independence of Cyprus, of the special rights and responsibilities of the Guarantor States, and of the continued military presence 586

Does international law permit Cyprus to join the EU? of the UK on the island. As has been shown above, there are no convincing grounds for impugning either the initial validity or the continuance in force of the relevant provisions of the Treaty. The Guarantors – the United Kingdom, Turkey and – it seems – Greece indeed continue to recognize its validity, which is also the position of the UN Security Council. 117. Turning to the substance, we have seen that, by Article I (2) of the Treaty of Guarantee, the Republic of Cyprus undertook ‘not to participate, in whole or in part, in any political or economic union with any State whatsoever’. Membership of the EU would constitute participation in whole or in part in an economic union, and at least in part in a political union. The conclusion must be, therefore, that this would be contrary to the Treaty of Guarantee. To try and escape this conclusion by arguing that the Treaty prohibits only union with a State, not States in the plural, would not only do violence to the ordinary meaning of the words, their context and their object and purpose: it would also run counter to the express intentions of the Governments who drafted this provision. For, as has been shown, they considered membership of international economic and political organizations specifically in the context of these clauses in the Treaty. By definition, such organizations would comprise other States, in the plural. The drafters were only prepared to relax this ban if the organization was one in which both Greece and Turkey both participated: but such is not the case with the EU. Furthermore, Article I (2) goes on to prohibit, not just participation (in whole or in part) in an economic or political union, but even ‘all activity likely to promote, directly or indirectly … union with any other State’. It cannot be gainsaid that membership of Cyprus in the EU is likely to promote, directly or indirectly, union with other States, and most particularly with Greece. 118. Nor was this the only undertaking of Cyprus. By paragraph (1) of the same Article it also ‘undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution’. And we have also seen that Constitution not only included provisions expressly echoing the words of Article I of the Treaty, but also others directly in point. Article 170 guarantees most-favoured-nation treatment to each of the Guarantors whereas, manifestly, if Cyprus became a member of the EU, Greece and the UK would have necessarily to receive more favoured treatment than Turkey. Moreover, Article 50 of the Constitution expressly gave the Turkish Vice-President, as the representative of his community, a veto over Cyprus membership in any international organization unless both Greece and Turkey were members. These were amongst the select group of unamendable ‘Basic Articles’ in the Constitution which the Republic of Cyprus undertook in the Treaty of Guarantee to respect. For all the above reasons it seems clear that 587

Part II: Cyprus–Europe Relations (1983–2006) Nicosia would violate its treaty obligations by seeking or accepting membership in the EU. 119. For their part, the Guarantor States also undertook important legal obligations. By Article II (1) of the same Treaty, these three States took ‘note of the undertakings of the Republic of Cyprus in Article I’ and ‘recognise(d) and guarantee(d)’, inter alia, the state of affairs established by the Basic Articles of the Constitution. Furthermore, in paragraph (2), reflecting the corresponding undertaking by the RC in Article I (2), they ‘likewise undert[ook] to prohibit, so far as concerns them, any activity aimed at promoting, directly or indirectly … union of Cyprus with any other States’. Admittedly, this guarantee is not completely unqualified: it extends only ‘so far as concerns them’ or, as the original version had it, ‘so far as lies within their power’. But it certainly does lie within the power of the UK (and, indeed, of Greece) to prevent a violation of the Treaty by the simple exercise of their veto. 120. Furthermore, given that at least de facto (on any view) the writ of Nicosia does not run throughout Cyprus, if that country were to join the EU there would be considerable practical and legal obstacles in the way of Nicosia’s implementation of duties which would have to be undertaken towards other members in respect of the island as a whole. For their part, the other members would in practice find it extremely difficult, if not impossible, to carry out their legal obligations in respect of Cyprus as a whole. The EU Commission and Court, as well as the UK Government, have frankly recognized these difficulties; but they have so far failed to draw the appropriate conclusions. 121. The undertakings of the RC and of three Guarantor States are not mere political statements. They are solemn legal promises embodied in a formal treaty. And what is given by this particular treaty is a guarantee, the most solemn form of pledge known to law. All four of the States concerned obtained benefits under the Treaty of Guarantee; but with these benefits came obligations. International law, by which the United Kingdom and other members of the EU set great store, demands that these obligations be performed.

56. The eligibility of Cyprus for EU membership: the opinion issued by J. Crawford, A. Pellet and 48 G. Hafner Summary 1. We are asked whether the Republic of Cyprus is eligible to become a member of the European Union. In this regard it is necessary to consider: 588

Does international law permit Cyprus to join the EU? (a) Article 1 paragraph 2 of the Treaty of Guarantee, 1960; (b) Article 50 of the Constitution of Cyprus, 1960; and/or (c) Article 170 of the Constitution. In our opinion, the answer is: yes. The Republic of Cyprus is eligible to become a member of the EU. In particular: •

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Article 1 paragraph 2 of the Treaty of Guarantee does not prohibit Cyprus from becoming a member of a regional organisation such as the European Union. Membership of the EU would not constitute participation ‘in any political or economic union with any State whatsoever’ within the meaning of Article 1 paragraph 2. As to Article 50 of the Constitution, there is no person now filling the role of Vice-President, and the provisions dealing with the powers of the VicePresident are in abeyance. Thus the Vice-Presidential veto provided for in Article 50 cannot be exercised. In any event the accession of Cyprus would not involve, in present circumstances, a ‘manifest’ breach of internal law within the meaning of Article 46 of the Vienna Convention on the Law of Treaties, and thus it could not subsequently be invoked by Cyprus as a basis for invalidating its consent to be bound by the EU treaties. Article 170 provides for most-favoured nation treatment to be extended by Cyprus to the three guarantor states ‘for all agreements whatever their nature may be’. Such treatment has only to be extended ‘by agreement on appropriate terms’. In common with other most-favoured-nation clauses, Article 170 does not prohibit Cyprus from entering into agreements which confer benefits on third states; it envisages that benefits extended to the most-favoured-nation will also be extended to each of the guarantors. Thus Article 170 does not prohibit Cyprus from acceding to any agreement whatever. In fact, EC membership is not regarded as triggering general mfn obligations, under the GATT or otherwise. Turkey as a GATT contracting party and applicant for EU membership is well aware of this practice. Both Turkey and Greece, in bilateral treaties concluded with Cyprus after independence, have recognised that mfn obligations in respect of trade in products do not apply ‘to privileges … preferences or concessions … granted … in the future to other countries on account of … participation, entry or association … [to] a customs union, a free trade area or an economic community’. For these reasons Article 170 would not require Cyprus to extend any additional benefits of EU membership to Turkey.

The status of the Republic of Cyprus 2. An initial point to be noted is that the Republic of Cyprus is recognised as an independent state, including by all existing members of the EU. The Government of Cyprus, based in Nicosia, is equally regarded as the 589

Part II: Cyprus–Europe Relations (1983–2006) government of the Republic, with the normal competence and authority to represent the state. This is so notwithstanding the constitutional difficulties that have occurred in Cyprus since 1963, and the de facto division of the island following the Turkish invasion in 1974. 3. By contrast, no other entity within Cyprus is recognised as a state, as the government of a state, or as having any degree of separate legal status or personality on the international plane. The ‘Turkish Republic of Northern Cyprus’, the entity created in the north of the island following the events of 1974, is recognized only by Turkey. The lack of international status of the ‘Turkish Republic of Northern Cyprus’ has been consistently reaffirmed by the Security Council as well as by the General Assembly, and by the European Court of Human Rights, the European Court of Justice, and national courts. For example in a case concerning the 1977 Protocol to the 1972 Association Agreement between the EC and Cyprus, the European Court of Justice said: ‘While the de facto partition of the territory of Cyprus, as a result of the intervention of the Turkish armed forces in 1974, into a zone where the authorities of the Republic of Cyprus continue fully to exercise their powers and a zone where they cannot in fact do so raises problems that are difficult to resolve in connection with the application of the Association agreement to the whole of Cyprus, that does not warrant a departure from the clear, precise and unconditional provisions of the 1977 Protocol on the origin of products and administrative cooperation … Article 5 cannot in any event confer on the Community the right to interfere in the internal affairs of Cyprus. The problems resulting from the de facto partition of the island must be resolved exclusively by the Republic of Cyprus, which alone is internationally recognized.’ 4. Against this background we turn to consider the three provisions which, it is said, prevent Cyprus from becoming a member of the EU, or at any rate from doing so before Turkey also becomes a member. Article I paragraph 2 of the Treaty of Guarantee 5. The Treaty of Guarantee of 16 August 1960 was concluded between Cyprus on the one part and the three guarantors, Greece, Turkey and the United Kingdom on the other part, on the day Cyprus became independent. Article I of the Treaty provides: ‘The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution. It undertakes not to participate, in whole or in part, in any political 590

Does international law permit Cyprus to join the EU? or economic union with any State whatsoever. It accordingly declares prohibited any activity likely to promote, directly or indirectly, either union with any other State or partition of the Island.’ By Article II, the three guarantor states ‘taking note of the undertakings of the Republic of Cyprus set out in Article I … recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution.’ 6. We note that at different stages questions have been raised as to the interpretation, continuing validity or legal effect of the Treaty of Guarantee. Such issues only need to be considered if the provisions of the Treaty would be infringed by Cyprus’s accession to the EC. For the reasons given here this is not the case. 7. One point is, however, crucial to the interpretation of Article 1 paragraph 2 of the Treaty. That provision embodies an unconditional and permanent prohibition upon partition or union with any state. It is not limited to cases of union through membership of organisations or participation in treaties to which Greece and Turkey are not members or parties. Accordingly, if Article 1 paragraph 2 is interpreted as prohibiting Cyprus from becoming a member of the EU, that prohibition is permanent and unconditional. It has nothing to do with the question of whether or when Turkey may become a member of the EU. 8. The immediate precursor of Article 1 paragraph 2 was Point 22 of the ‘Basic Structure of the Republic of Cyprus’, initialled by the Greek and Turkish Prime Ministers at Zurich on 11 February 1959. Point 22 provided: ‘It shall be recognised that the total or partial union of Cyprus with any other State, or a separatist independence for Cyprus (i.e., the partition of Cyprus into two independent States), shall be excluded.’ The purpose of Point 22 was to exclude both Enosis and Taksim – union of Cyprus with Greece, or division of the island leading to the union, or close association, of one part with Greece and the other with Turkey. These were the avowed aims of the two communities during the 1950s: the compromise underlying the Zurich and London Accords of 1959 involved the abandonment of both. But the question is whether Article 1 paragraph 2 of the Treaty of Guarantee also had the effect of preventing Cyprus from ever becoming a party to a supranational regional economic agreement such as the EEC (now the EU).

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Part II: Cyprus–Europe Relations (1983–2006) The interpretation of Article I paragraph 2 9. To answer that question it is necessary to apply the international law rules of the interpretation of treaties. These are authoritatively set out in Articles 31–33 of the Vienna Convention on the Law of Treaties of 1969, which relevantly provide as follows: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 3. There shall be taken into account, together with the context … (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. … Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. Thus the first step in any process of treaty interpretation is to consider the actual language of the treaty provision in its context and in the light of its object and purpose. The ordinary meaning of Article 1 paragraph 2 10. The second paragraph of Article I consists of two sentences. The first contains a commitment by Cyprus itself ‘not to participate, in whole or in part, in any political or economic union with any State whatsoever’. The second declares that any activities likely ‘to promote, directly or indirectly, either union with any other State or partition of the Island’ are prohibited. This is evidently aimed, inter alia, at popular agitation in favour of enosis or partition, and thus extends beyond the actions of the Government of Cyprus itself. 11. It should first be noted that the term ‘State’ in Article I is in the singular. Moreover, it is legitimate to take as the context of paragraph 2 the Constitution itself, to which paragraph 1 refers. Article 50 of the Constitution refers to ‘international organisations and pacts of alliance’. Article 169 of the Constitution refers to ‘international agreements with a foreign State or any International Organisation relating to commercial matters, economic cooperation … and modus vivendi’. Article I paragraph 2 of the 592

Does international law permit Cyprus to join the EU? Treaty of Guarantee thus proceeds on the basis of a distinction between a ‘political or economic union with any State’, on the one hand, and ‘international organisations and pacts of alliance’, or economic cooperation agreements, on the other hand. It is true that a ‘political or economic union with any State’ could be initiated by a treaty. But what is prohibited by Article I paragraph 2 is union with another state, not cooperation with a group of states in establishing a supranational organization of a political and/or economic character. 12. It should be noted that from the earliest development of international organisations in the 19th century, the term ‘union’ was quite often used. Examples include, at the universal level, the International Telecommunications Union (1865) and the Universal Postal Union (so titled from 1878) and, at the regional level, the Western European Union (1954). Cognate terms such as ‘unity’ and ‘united’ are also often used, either in the title of the organisation, as in the Organisation of African Unity, or in terms of its purposes, as with Article I of the Statute of the Council of Europe. But a distinction has always been drawn between membership of multilateral or plurilateral organisations of states (whatever their title), and the political or economic union of one state with another state. 13. That distinction holds for the European Union. It is not necessary for present purposes exhaustively to analyse the European Union as it currently exists under the Treaty on European Union of 7 February 1992 (the Maastricht Treaty), or as it will become following the 1997 Intergovernmental Conference. Despite the continuing evolution of the EU, the position is clear enough. For example, the German Federal Constitutional Court has described the EU as ‘a supranational organization, which is separate from the State authority of the Member States’, a ‘supranational system of competences’. According to the Court, the Maastricht Treaty: ‘establishes a European Union of States which is to be borne by the Member States and respects their national identity. It relates to Germany’s membership of supranational organizations, not membership of a European State. … The exercise of sovereign authority by a union of States such as the European Union is based on powers conferred by States which remain sovereign and which, at international level, always act through their governments and thereby control the process of integration.’ A similar point is expressed by Article 88–1 of the French Constitution, which describes the EC and the EU as ‘established by States having freely chosen, pursuant to the constitutive treaties of those entities, to exercise certain of their powers in common’. The French Constitutional Council had described the EU as ‘an independent legal order which, although integrated into the legal systems of the different Member states of the 593

Part II: Cyprus–Europe Relations (1983–2006) Communities, does not form part of the institutional order of the French Republic’. This recalls the well-known description of the EEC, given by the European Court of Justice in 1964, as a distinct ‘legal system which … became an integral part of the legal systems of the Member States’. The European Court has never suggested that the legal system of each member state has become an integral part of the legal systems of the other members. 14. Rather, what each of the descriptions quoted in the previous paragraph seeks to convey is that, although the EU is a distinct community with its own legal system and an existence separate from that of its member states, and although it aspires to a ‘more perfect union’, it is a legal system of a transnational character in which each member state participates. The member states have transferred certain defined elements of governmental authority to the EU, not to each other. The law of the EU is part of the laws of the member states, but the laws of the member states remain distinct from each other, each controlled by its own constitutional system. The EU is not a state, and it is inaccurate to describe any individual member state as economically or politically in union with other individual member states. In the language of the French Constitutional Council, no member state ‘forms part of the institutional order’ of any other member state. Rather they are all linked in and through the community of the EU. 15. This is a very different situation from the one envisaged and prohibited by Article 1 paragraph 2 of the Treaty of Guarantee, which was concerned to prevent Cyprus, or any part of Cyprus, becoming united with another particular state. In fact, of course, the concern was to prevent any form of political or economic union with either Greece or Turkey. As Professor Lavroff put it at the time: ‘On voit bien ici que la raison d’être des accords du 19 février 1959 est de couper court aux prétentions émises par la Grèce et la Turquie.’ Although for form’s sake these two states were not mentioned, it was precisely the formation of a statal union with either, in whole or in part, that was excluded. It was such a union which the two communities unsuccessfully sought to achieve in the conflicts of the 1950s. On the basis of the ordinary meaning to be given to the first sentence of Article 1 paragraph 2 in its context and in the light of its object and purpose, membership of the EU does not involve ‘political or economic union with any State’. 16. It might be argued that the effect of EU membership is indirectly to promote union with any State, in that Cyprus by reason of its small size and population would inevitably tend to be dominated indirectly by other member states through the medium of the EU, and that this is contrary to the second sentence of paragraph 2. The simple answer, however, is that the prohibited result under both sentences of 594

Does international law permit Cyprus to join the EU? paragraph 2 is ‘union with any other State or partition of the Island’. The position in the EU, both formally and in substance, is that the member states exercise collective control over the institutions of the EU, which in turn generates the rules and policies which member states must apply. There is no analogy whatever to the situation described by Judge Anzilotti in his decisive opinion in the Austro-German Customs Union case, where: ‘In view of the great disproportion in the economic strengths of Germany and Austria … Austria’s economic life would sooner or later become dependent upon Germany’s … and its effect would therefore be to conform and strengthen the movement towards the incorporation of Austria within a single big German State.’ By contrast, Cyprus as a member of an organisation such as the European Union with between 15 and 21 members would be less dependent on any single state. Subsequent practice in the application of Article 1 paragraph 2 17. Under Article 31 (3) (b) of the Vienna Convention, the subsequent practice of the parties to a treaty is to be taken into account if it establishes their agreement as to the interpretation of the treaty. Subsequent practice in the application of the Treaty of Guarantee suggests that it has not been regarded by the parties as preventing Cyprus from entering into treaties for closer economic and political relations with groups of states. Perhaps the best example is the Association Agreement between the EEC and Cyprus, signed at Brussels on 19 December 1972. The Agreement envisages a customs union between Cyprus and the EEC (Article 2 (3)), and adopts a principle of non-discrimination as between nationals or companies of member states, and also as between nationals or companies of Cyprus (Article 5). Objections to the conclusion of the Agreement were made in 1972 from the Turkish Cypriot side, but the EEC disregarded these on the ground that they were internal matters for Cyprus. Turkey for its part expressed concern over the possibility of discrimination against the Turkish community in Cyprus, a concern addressed by Article 5 of the Agreement. Neither the United Kingdom nor Turkey argued that the conclusion of the Association Agreement was a breach of Article 1 paragraph 2 of the Treaty of Guarantee: no one suggested that the Agreement indirectly created or envisaged an economic union with any existing member of the EEC. This example is all the more significant in that, as Professor Toulemon put it, such an association is a ‘stage vers l’adhésion’, a probationary step in the direction of membership.

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Part II: Cyprus–Europe Relations (1983–2006) The travaux préparatoires of Article 1 paragraph 2 18. Under Article 32 of the Vienna Convention, regard can always be had to the travaux préparatoires of a treaty in order to confirm its interpretation. In fact, agreement on Point 22, the precursor of Article 1 paragraph 2, was reached by the Greek and Turkish Foreign Ministers at Zurich on 11 February 1959, and was subsequently confirmed in discussions with the British Government. The two Foreign Ministers reported their agreement to the British Foreign Secretary on 12 February 1959, at which meeting the following exchange took place: ‘The Secretary of State … turned to the Zürich documents beginning with the Treaty of Guarantee. Was the second paragraph of Article 1 intended to preclude Cypriot membership of all international associations, as for example the Free Trade Area if that ever came into existence? M. Zorlu explained that the paragraph was intended to prohibit partition and Enosis (whether with Greece or with any other country). M. Averoff agreed; he explained that the wording was specifically designed to exclude possible Greek devices in the direction of Enosis, such as a personal union of Cyprus and Greece under the Greek Crown. M. Zorlu and M. Averoff both made it clear that there would be no objection to Cypriot membership of international associations of which both Greece and Turkey were members; e.g., the Postal Union, and any Free Trade Area. Nor did they exclude either Commonwealth membership for Cyprus or membership of the Sterling Area. They would, indeed, welcome Commonwealth membership. … Article 1 of the Treaty of Guarantee could be amended if necessary to make clear that neither Commonwealth nor Sterling Area membership were excluded. But the final decision on such membership would, of course, rest with the Cypriots themselves.’ Evidently the Foreign Secretary accepted this explanation, and no amendment to Article 1 was found necessary. 19. The matter was raised again in the London Joint Committee on Cyprus on 19 October 1959. The Committee, which consisted of Greek Cypriot and Turkish Cypriot representatives as well as representatives of the United Kingdom, Greece and Turkey, was responsible for finalizing the various texts in accordance with the provisions agreed on by the three states at Zurich and London. At the 26th meeting of the Committee, the following exchange took place between the British chairman and the senior Greek Cypriot representative: ‘SIR KNOX HELM then asked if, apart from the proposed Article V Mr Rossides accepted the draft text. 596

Does international law permit Cyprus to join the EU? MR ROSSIDES replied affirmatively. He then asked the meaning of Article I paragraph 2. He presumed it referred to union with Greece or Turkey, but it seemed rather sweeping, as he supposed that Cyprus could for instance join an economic organisation or the Commonwealth. SIR KNOX HELM observed that that was coming near to reexamining the wording of the Treaty, and that it was perhaps better not to start to try to interpret the various Articles. M. ROUMOS said he thought they could all assure Mr Rossides and put on record that it was certainly not intended that Cyprus should be precluded from membership of the Free Trade Area or multilateral organisations. What was meant was that Cyprus should not be politically united with Greece or Turkey, or even economically in the narrow sense of customs union; but that could not really be said in a Treaty. M. BAYULKEN confirmed that the wording did not refer to any international organisations, such as FAO, GATT, etc. MR ROSSIDES thanked M. Roumos and M. Bayulken for their explanation, and then said that he must reply to Sir Knox Helm’s remark that he was trying to open discussion of the Treaty. When starting, he had said that he did not dispute it, and had asked for elucidation. … His Delegation had received a constructive reply from the Greeks and Turks and had thought it proper to raise the issue.’ 20. Thus the Greek and Turkish negotiators of the Treaty assured first the British Government and subsequently the Cypriot representatives that Article 1 paragraph 2 of the Treaty of Guarantee would not prevent Cyprus becoming a party to international organizations including free trade areas, common currency areas, etc. Its concern was to prevent the two rival aims for which the opposing forces in Cyprus had been fighting during the 1950s, enosis or partition leading to de facto union with another state, together with any indirect form of arrangement which might achieve the same end, such as a ‘narrow … customs union’ with Greece or Turkey. The travaux of Article 1 paragraph 2 confirm that it means exactly what it says, that the use of the singular term ‘State’ is deliberate, and that it is not addressed at international organisations such as the EU. The attitude of the international community to the Cyprus application for membership 21. This interpretation has also received support from the international community more widely. Cyprus applied for EC membership on 3 July 1990. In its opinion on the application, the European Commission stated: 597

Part II: Cyprus–Europe Relations (1983–2006) ‘When presenting its application for accession, the Government of the Republic of Cyprus, recognized by the European Community and its Member States as the only legitimate government representing the Cypriot people, addressed the Community on behalf of the whole of the island. The application was strongly challenged by the de facto authorities of the northern part of the island. While acknowledging that it would be in the interest of the Turkish Cypriot community to form part of the European Community, these authorities rejected the right of the Government of the Republic of Cyprus to speak for the whole of Cyprus in such an approach. They based their position on the Guarantee Treaty and the wording of the 1960 Constitution, which grants the President and Vice-President (a Turkish Cypriot) a veto over any foreign policy decision, particularly any decision on joining an international organization or alliance that does not count both Greece and Turkey among its members. They consider, accordingly, that in the prevailing circumstances the Community should not take any on the application. The Community, however, following the logic of its established position, which is consistent with that of the United Nations where the legitimacy of the Government of the Republic of Cyprus and non-recognition of the “Turkish Republic of Northern Cyprus” are concerned, felt that the application was admissible and initiated the procedures laid down by the Treaties in order to examine it.’ The Commission went on to deal with economic and other issues relating to possible accession, reaching a broadly favourable conclusion. For present purposes, however, what matters is that the Commission confirmed, and member states subsequently endorsed, the view that Cyprus is ‘eligible for membership’. That view has since been strongly reaffirmed. 22. The EU’s attitude cannot be explained on the basis that from its point of view Cyprus’s accession to the EU would prevail over its treaty obligations to a third state, Turkey. On the contrary the EU has been careful to preserve existing treaty rights and obligations, as is shown by Article 234 of the EC Treaty, which expressly preserves such rights and obligations. This concern has been taken fully into consideration in the subsequent adhesion treaties, and it is fully consistent with the law of treaties. The EU’s position is, evidently, that Cyprus is not prohibited by its existing treaty obligations either from association with or membership of the Union. 23. Reference may also be made to the position of the United Nations, as expressed by the Security Council in its consideration of the Cyprus question since 1990. The most recent resolution of the Security Council on Cyprus contains the following paragraphs: 598

Does international law permit Cyprus to join the EU? ‘11. Reaffirms its position that a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising two politically equal communities as described in the relevant Security Council resolutions, in a bi-communal and bi-zonal federation, and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession. 14. Reaffirms that the decision of the European Union concerning the opening of accession negotiations with Cyprus is an important development that should facilitate an overall settlement.’ These paragraphs also occur in earlier resolutions. The first paragraph has been repeated in successive resolutions since 1990; the second was also contained in SC Resolution 1092 of 23 December 1996. The conjunction of the two paragraphs makes it quite clear that the Security Council regards the accession of Cyprus to the EU as plainly consistent with a renewed commitment to avoid ‘union in whole or in part with any other country’. Austria and the EU: an analogous case of a guarantee against political union 24. The question of the accession of Cyprus to the EU has common features, from a legal point of view, with the earlier question of the accession of Austria. Under Article 4 (1) of the Austrian State Treaty of 1955, Austria undertook not to ‘enter into political or economic union with Germany in any form whatever’. Article 4 paragraph 2 amplified that guarantee against another Anschluss, in the following terms: ‘In order to prevent such union Austria shall not conclude any agreement with Germany, nor do any measures likely, directly or indirectly, to promote political or economic union with Germany, or to impair its territorial integrity or political or economic independence. Austria further undertakes to prevent within its territory any act likely, directly or indirectly, to promote such union and shall prevent the existence, resurgence and activities of any organizations having as their aim political or economic union with Germany, and pan-German propaganda in favour of union with Germany.’ 25. Although the matter was discussed following Austria’s application in 1989 for EC membership, the view taken was that membership was in no way inconsistent with Article 4 paragraph 2 of the State Treaty. Of the parties to the State Treaty, the USSR initially objected to EU membership, but it did so primarily because EU membership was inconsistent with Austrian neutrality, a subject deliberately not dealt with in the State Treaty. As to the issue of indirect union with Germany, the position of the Austrian Government was that Article 4 was ‘irrelevant’. The EC Commission evidently agreed: in its lengthy report on the Austrian 599

Part II: Cyprus–Europe Relations (1983–2006) application, it too regarded the State Treaty as irrelevant and focused exclusively on the issue of neutrality. 26. Austrian and foreign commentators equally dismissed the argument. For example, Lernhardt wrote that Article 4: ‘clearly refers to the bilateral relationship between Austria and Germany. Membership in an association of states could at best be affected by the article if this association were entirely dominated by Germany. In the EC, Germany is only one of twelve member-states, without coming even closely to having a majority of votes. With complete justification each of the present EC members would strictly reject any interpretation of its accession as “Anschluss with Germany”.’ As early as 1963, Ermacora came to the conclusion that the accession to the EEC would not contradict Article 4 of the State Treaty: in his view the prohibition of ‘Anschluß’ related to union with a state, not to a supranational community. Similar conclusions were drawn by SeidlHohenveldern with regard to the proposed association agreement. On the question of whether EU membership would amount indirectly to union with Germany, the question was whether German influence or control over the EEC (now EU) amounted to domination, so as to produce indirectly what Article 4 directly prohibited. Again, the unanimous answer was that it would not: on the contrary, the exclusion of Austria from the Common Market, it was concluded, would weaken the economic survival capacity of Austria and, consequently, undermine the objective of Article 4 (2) of the State Treaty. In the event, Austria was admitted to the EU in 1994, without Russian objection and with no amendment having been made to Article 4 of the State Treaty. 27. Similar conclusions apply to the question of the compatibility of an accession of the Republic of Cyprus to the EU. No single Member State of the EU has or claims to have such an influence in either a formal or a material sense over the decision-making procedure of the EU that it could be seen as dominating the EU. Hence, accession of the Republic of Cyprus to the European Union cannot be qualified as an ‘economic or political union with any State whatsoever’. Article 50 of the 1960 Constitution 28. We turn to the arguments relating to the Constitution of 1960. Article 50 of the Constitution provides, in part, as follows: ‘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 inter600

Does international law permit Cyprus to join the EU? national organisations and pacts of alliance in which the Kingdom of Greece and the Republic of Turkey both participate. … 2. The above right of veto may be exercised either against the whole of a law or decision or against any part thereof, and in the latter case such law or decision shall be returned to the House of Representatives for a decision whether the remaining part thereof will be submitted, under the relevant provisions of this Constitution, for promulgation.’ Article 50 defines ‘foreign affairs’ broadly, including ‘the conclusion of international treaties, conventions and agreements’. Under Articles 50 (3) and 52, the right of veto must be exercised within 15 days of the transmission of the law or decision. 29. As a matter of form, we note that Article 50 does not allow the President or Vice-President to veto a law or decision in advance of its consideration by the House of Representatives. More important, however, are certain matters of fact. The first Vice-President of the Republic was Mr Kutchuk, who was elected under Article 39 of the Constitution in December 1959. There has never been another election for the Vice-Presidency. From 1963 constitutional difficulties arose, and the Turkish Cypriot office holders under the Constitution progressively withdrew from participation. Moreover, since the Turkish invasion of 1974 the leadership of the Turkish Cypriot community has been seeking the partition of Cyprus and the establishment of a separate Turkish Cypriot state. Accordingly, the position in fact is that the provisions of the 1960 Constitution dealing with the Vice-Presidency, as with other provisions for Turkish Cypriot representation in the Government of Cyprus, are presently inoperative. Despite this, as we have noted, the international community continues to recognise that the Government of Cyprus has the normal capacity to represent Cyprus and to conduct its foreign affairs. 30. The question is whether, in these circumstances, Cyprus is prevented from validly acceding to the EU. The answer, in our opinion, is clearly no. Article 50 of the Constitution recognises that Cyprus has the normal capacity of a state to enter into ‘international treaties, conventions and agreements’ and to become a member of all kinds of international organizations and alliances. It provides a procedural veto on such decisions, the veto to be cast by a Vice-President elected and effectively performing his functions under the Constitution. In the absence of a veto duly cast in accordance with Article 50, the decision to accede is valid and effective. 31. Reference should be made here to Articles 27 and 46 of the Vienna Convention on the Law of Treaties. Article 27 provides: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.’ 601

Part II: Cyprus–Europe Relations (1983–2006) Article 46 in turn provides: ‘1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.’ Thus, the general rule is that a breach of internal law, including constitutional law, is no excuse for failure to comply with international obligations. Moreover, such a breach can only be relied upon as a basis for challenging the validity of a treaty in quite exceptional circumstances. Only the state whose constitutional rules have been breached may rely on the breach, and it can only do so in a case of manifest violation. The rule under general international law may be even stricter. 32. Thus, even if it could be argued that the accession of Cyprus to the EU would be against the expressed wishes of the Turkish community, the fact remains that, under Article 50, the veto power is vested not in that community as such but in a Vice-President duly elected and effectively performing his functions under the Constitution. At present there is no such person, and Article 50 is simply inapplicable. In any event, in present circumstances an alleged violation of Article 50 would not be ‘manifest’. This was the position taken by the EC when the Association Agreement of 1972 was concluded, and again in its consideration of Cyprus’s application for membership. It was confirmed by the European Court of Justice in 1994. It has been the consistent position of the United Nations, for example in the periodic resolutions extending the mandate of UNFICYP, which resolutions have been based expressly on the agreement of the Government of the Republic of Cyprus without any reference to Article 50 of the Constitution. 33. The 1960 Constitution is no doubt unusual in that the three guarantor states have a legally recognised interest in its implementation. But neither the Constitution nor the Treaty of Guarantee give the guarantor states themselves any veto over decisions by the Government of the Republic in the field of foreign affairs, and specifically over decisions to apply for membership of international organisations. The veto power is vested in certain high officials of the Government of Cyprus itself, and that power cannot be transformed into a wholly different and unexpressed veto power to be exercised by the present leadership of the Turkish Cypriots which is seeking to secede from Cyprus (contrary both to the Constitution and the Treaty of Guarantee), let alone by one of the guarantor powers itself. The position in present circumstances is 602

Does international law permit Cyprus to join the EU? that no Vice-President exists to exercise the veto, and in the absence of a validly exercised veto in accordance with Article 50, the constitutional authority of the Government to carry on the foreign affairs of Cyprus is unquestionable. 34. That this is the case has been widely recognised. If the argument drawn from Article 50 were valid, this would mean that no treaty concluded by the Republic of Cyprus since 1963 could be valid. This is obviously contradicted by the fact that Cyprus has entered into hundreds of treaties since that date with virtually all states in the world, and their validity has never been challenged despite the impossibility of applying Article 50 of the Constitution. Article 170 of the 1960 Constitution 35. Article 170 (1) of the 1960 Constitution is also invoked. It provides as follows: ‘1. The Republic shall, by agreement on appropriate terms, accord mostfavoured-nation treatment to the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland for all agreements whatever their nature may be.’ It is said that, in the event of its accession to the EU, Cyprus will not be in a position to comply with Article 170 so far as Turkey is concerned. But this ignores, inter alia, the language of Article 170 itself. Mostfavoured nation (‘mfn’) treatment has only to be extended ‘by agreement on appropriate terms’. In common with other most-favoured nation clauses, Article 170 does not prohibit Cyprus from entering into agreements which confer benefits on third states. It merely requires that treatment extended to the most-favoured nation also be extended to each of the guarantors. Moreover, unlike most mfn clauses in treaties, the unilateral undertaking in Article 170 is conditional. Mfn treatment was only to be extended under a subsequent agreement with Cyprus: it was to be a matter for the parties to reach agreement in particular ‘on appropriate terms’ for granting such treatment. 36. It is understood that Turkey has never claimed the benefit of Article 170 of the Constitution. Moreover it is well understood, both among EU members and third states, that entry to the EU does not trigger the general mfn obligations of the entrant to third states. This is consistent with Article XXIV (5) of the GATT, and it is a position which Turkey itself, as a WTO member and an applicant for EU membership, must be taken to have accepted. Indeed, such a position has been expressly accepted in bilateral trade agreements entered into by Cyprus with both Turkey and Greece. The Trade Agreement between Cyprus and Turkey of 9 November 1963 provides in Article 1 for mfn treatment to be extended 603

Part II: Cyprus–Europe Relations (1983–2006) to duties or charges of any kind on importation of the goods of either country to the other. Article 1 further provides that: ‘The above most-favoured-nation treatment shall not apply: … (c) to privileges, exemptions from taxes (fees), preferences or concessions which each of the Contracting countries has granted or will grant in the future to other countries on account of a present or future participation, entry or association by them to a customs union, a free trade area or an economic community.’ Article 1 thus expressly recognises that the mfn obligation in respect of taxes or charges on import of goods is not triggered by more favourable treatment extended by either state to its partners in a free trade area or economic community. The economic community that was envisaged at the time was, of course, the EEC. In the light of this Agreement, as well as of the network of relations created under the association agreements between both Cyprus and Turkey and the EU, it is clear that Article 170 of the Constitution would not require any more favourable treatment to be extended to Turkey in the event of Cyprus becoming an EU member. 37. It should be noted in passing that Article 1 of the 1963 Trade Agreement between Cyprus and Turkey expressly envisages that Cyprus will or may enter an economic community such as the EEC. This contradicts the argument now made that Article 1 paragraph 2 of the Treaty of Guarantee permanently prevents such entry. Conclusions 38. It has not been necessary in this opinion to deal with any questions that would arise if Article 1 of the Treaty of Guarantee, or Articles 50 or 170 of the Constitution, were to be interpreted so as to preclude Cyprus from acceding to the EU. Even on that assumption, it would be very doubtful whether Turkey could raise any objection, because of its own breaches of the Treaty of Guarantee. But in our opinion the meaning of the three provisions is clear. Thus questions of estoppel, or of the application of the principle that a party in breach of a treaty provision may not itself rely on it, simply do not arise. 39. For the reasons we have given, there is no basis for the view that Cyprus is prevented by the Treaty of Guarantee, or by any provisions of the Constitution of 1960, from becoming a member of the EU.

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THE EUROPEAN COMMISSION _________________________________________________

57. Commission opinion on the application by the Republic of Cyprus for membership: extracts from document 93/5 dated 30 June 1993 Foreword On 3 July 1990, the government of the Republic of Cyprus submitted to the Council of the European Communities an application for membership of the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (EAEC). At its meeting on 17 September 1990, the Council noted the application and decided to set in motion the procedures laid down in Article 98 of the ECSC Treaty, Article 237 of the EEC Treaty and Article 205 of the Euratom Treaty, asking the Commission to draw up an opinion, as required by these provisions. Applications have recently also been received from several EFTA countries and from Malta, and an application was previously submitted by Turkey. The Commission delivered its opinion on Turkey’s application in December 1989, followed by opinions on the applications of Austria (August 1991), Sweden (July 1992), Finland (November 1992) and Norway (March 1993). It is transmitting its opinion on the application submitted by Malta simultaneously with this document. The European Council concluded its discussion of the question of enlargement at its Lisbon meeting on 26 and 27 June 1992 with the following observations relating to the EFTA countries: ‘The European Council considers that the EEA Agreement has paved the way for opening enlargement negotiations with a view to an early conclusion with EFTA countries seeking membership of the European

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Part II: Cyprus–Europe Relations (1983–2006) Union. … The official negotiations will be opened immediately after the Treaty on European Union is ratified and agreement has been achieved on the Delors II package.’ In the light of the decisions taken by the European Council at its Edinburgh meeting on 11 and 12 December 1992, enlargement negotiations got under way in February 1993 with Austria, Finland and Sweden, and in April 1993 with Norway. As regards applications from other countries, the Lisbon conclusions continue as follows: ‘The European Council considers that if the challenges of a European Union composed of a larger number of Member States are to be met successfully, parallel progress is needed as regards the internal development of the Union and in preparation for membership of other countries. In this context the European Council discussed the applications which have been submitted by Turkey, Cyprus and Malta. The European Council agrees that each of these applications must be considered on its merits. Relations with Cyprus and Malta will be developed and strengthened by building on the Association Agreements and their application for membership and by developing the political dialogue.’ The European Council, which met in Copenhagen on 21–22 June 1993, ‘considered that its guidelines with regard to enlargement with the EFTA countries shall be without prejudice to the situation of other countries which have applied to join the Union. The Union will consider each of these membership applications on its own merits. The European Council welcomed the Commission’s intention to present shortly its opinion on Malta and on Cyprus. These opinions will be examined rapidly by the Council taking into consideration the particular situation of each of the two countries’. Conclusions Cyprus’s geographical position, the deep-lying bonds which, for two thousand years, have located the island at the very fount of European culture and civilization, the intensity of the European influence apparent in the values shared by the people of Cyprus and in the conduct of the cultural, political, economic and social life of its citizens, the wealth of its contacts of every kind with the Community, all these confer on Cyprus, beyond all doubt, its European identity and character and confirm its vocation to belong to the Community. A political settlement of the Cyprus question would serve only to reinforce 606

The European Commission this vocation and strengthen the ties which link Cyprus to Europe. At the same time, a settlement would open the way to the full restoration of human rights and fundamental freedoms throughout the island and encourage the development of pluralist democracy. The Commission is convinced that the result of Cyprus’s accession to the Community would be increased security and prosperity and that it would help bring the two communities on the island closer together. If there were to be a political settlement, the prospect of the progressive re-establishment of fundamental liberties would help overcome the inevitable practical difficulties which would arise during the transition period in regard to the adoption of the relevant Community legislation. In regard to economic aspects, this opinion has shown that, in view of the progress towards a customs union achieved thus far, the adoption of the acquis communautaire by Cyprus will pose no insurmountable problems. The Commission is not underestimating the problems that the economic transition poses. However, the economy of the southern part of the island has demonstrated an ability to adapt and seems ready to face the challenge of integration provided that the work already started on reforms and on opening up to the outside world is maintained, notably in the context of the customs union. This opinion also has shown that there will be a greater chance of narrowing the development gap between north and south in the event of Cyprus’s integration with the Community. The government of the Republic of Cyprus shares this conviction. Even though they object to the conditions under which the application for membership was made, the leaders of the Turkish Cypriot community are fully conscious of the economic and social benefits that integration with Europe would bring their community. This opinion has also shown that Cyprus’s integration with the Community implies a peaceful, balanced and lasting settlement of the Cyprus question – a settlement which will make it possible for the two communities to be reconciled, for confidence to be re-established and for their respective leaders to work together. While safeguarding the essential balance between the two communities and the right of each to preserve its fundamental interests, the institutional provisions contained in such a settlement should create the appropriate conditions for Cyprus to participate normally in the decisionmaking process of the European Community and in the correct application of Community law throughout the island. In view of all the above and in the expectation of significant progress in the talks currently being pursued under the auspices of the Secretary-General of the United Nations, the Commission feels that a positive signal should be sent to the authorities and the people of Cyprus confirming that the Community considers Cyprus as eligible for membership and that as soon as the prospect of a settlement is surer, the Community is ready to start the process with Cyprus that should eventually lead to its accession. 607

Part II: Cyprus–Europe Relations (1983–2006) The United Nations Secretary-General is aware that he can count on the Community’s support in his continued endeavours to produce a political settlement of the Cyprus question. Even before such a settlement is forthcoming, the Commission undertakes to use all the instruments available under the Association Agreement to contribute, in close cooperation with the Cypriot government, to the economic, social and political transition of Cyprus towards integration with the Community. If the Council agrees, and in the hope of facilitating the conduct of the future accession negotiations, the Commission is willing to begin immediately talks with the government of Cyprus. These talks would serve to familiarize the Cypriot authorities with all the elements that constitute the acquis communautaire, partly in order to allow them to prepare their negotiating position under the best possible conditions and partly to permit an assessment of the need for any technical cooperation and assistance that their country might require to adopt and implement Community legislation and the policies and instruments that will be needed for its integration and to prepare the way, in due course, for the north of the island to catch up economically. The Commission also undertakes to examine the issue of Cyprus’s future institutions and their compatibility with the requirements of active participation in the day-to-day running of the Community in the event of accession. The Community must ensure, moreover, that the general assessment to be carried out in the context of the 1996 intergovernmental conference results in greater efficiency in the operation of the institutions of an enlarged Community – and one that could well be enlarged further – while at the same time providing Cyprus, and any other new Member state of a similar size, with a guarantee that it will receive appropriate treatment in the decisionmaking process and in the discharging of its responsibilities. Lastly, the Commission must envisage the possibility of the failure of the intercommunal talks to produce a political settlement of the Cyprus question in the foreseeable future, in spite of the endeavours of the United Nations Secretary-General. Should this eventuality arise, the Commission feels that the situation should be reassessed in view of the positions adopted by each party in the talks and that the question of Cyprus’s accession to the Community should be reconsidered in January 1995.

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THE EUROPEAN COUNCIL _________________________________________

58. The Cyprus question in the European Council summits Dublin, 26 June 1990 The European Council discussed the Cyprus question in the light of the impasse in the inter-communal dialogue. The European Council, deeply concerned at the situation, fully reaffirms its previous declarations and its support for the unity, independence, sovereignty and territorial integrity of Cyprus in accordance with the relevant UN resolutions. Reiterating that the Cyprus problem affects EC–Turkey relations, and bearing in mind the importance of these relations, it stresses the need for the prompt elimination of the obstacles that are preventing the pursuit of effective inter-communal talks aimed at finding a just and viable solution to the question of Cyprus on the basis of the mission of good offices of the UN Secretary-General, as it was reaffirmed by Resolution 649 of the Security Council. Luxembourg, 10 April 1993: Commission’s opinion The Council supported the Commission’s approach, which was to propose, without awaiting a peaceful, balanced and lasting solution to the Cyprus problem, to use all the instruments offered by the Association Agreement to help, in close cooperation with the Cypriot Government, with the economic, social and political transition of Cyprus towards integration into the European Union. To that end the Council invited the Commission to open substantive discussions forthwith with the Government of Cyprus to help it to prepare for the accession negotiations which would then follow under the best possible conditions, and to keep the Council regularly informed of the progress made. The Council also confirmed the Community’s support for the efforts made by the United Nations Secretary-General to produce a political settlement of the Cyprus question. If, in spite of these efforts, there was no

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Part II: Cyprus–Europe Relations (1983–2006) prospect of a solution in the foreseeable future, the Council agreed to reassess the situation in the light of the positions expressed by each side in the intercommunity discussions and to examine in January 1995 the question of the accession of Cyprus to the European Union in the light of this situation. Corfu, 24 June 1994 The European Council notes that in these conditions the next phase of enlargement of the Union will involve Cyprus and Malta. The European Council, recalling relevant decisions of the Council of 4 October 1993, 18 April 1994 and 13 June 1994, reaffirms that any solution of the Cyprus problem must respect the sovereignty, independence, territorial integrity and unity of the country, in accordance with the relevant United Nations resolutions and high-level agreements. Essen, 19 December 1994 The European Council confirms that the next phase of enlargement of the Union will involve Cyprus and Malta and invites the Council to examine in early 1995 new reports to be presented by the Commission. General Affairs Council conclusions, 6 March 1995 The Council of Ministers, after re-examining Cyprus’s application in line with its earlier decisions and the conclusions of the Corfu and Essen European Councils and after examining the report from the EU observer for Cyprus: •

•

•

•

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reaffirms the suitability of Cyprus for accession to the European Union and confirms the European Union’s will to incorporate Cyprus in the next stage of its enlargement, regrets the lack of progress in the inter-communal talks taking place under the auspices of the UN Secretary-General and calls upon all parties to step up their efforts to achieve a comprehensive settlement of the Cyprus question in accordance with UN Security Council resolutions, based on the concept of a bi-communal and bi-zonal Federation, considers that the developments noted in the last few months have enabled elements which could be useful for defining an agreement to be identified, considers that Cyprus’s accession to the EU should bring increased security and prosperity to both communities on the island. In particular, it should allow the North to catch up economically and should improve the outlook for growth and employment, particularly for the TurkishCypriot community. The Council considers that this community must perceive the advantages of EU accession more clearly and its concern at the prospect must be allayed. The Council calls upon the Commission to

The European Council organise the requisite contacts to this end with the Turkish-Cypriot community, in consultation with the Government of Cyprus. Under these circumstances, the Council considers that Cyprus’s accession should benefit all communities and help to bring about civil peace and reconciliation; accession negotiations will start on the basis of Commission proposals six months after the conclusion of the 1996 Conference, taking account of the results of the Conference. It calls upon the Commission to continue its work of familiarising the Cyprus administration with the acquis communautaire, which it began a year before in time for the next meeting of the Association Council with Cyprus, it intends to adopt concrete proposals for a specific strategy in preparation for accession, including a structured dialogue, the precise details of which will be established in accordance with the Annex hereto. It confirms that the EU intends to continue to support with all means at its disposal the United Nations’ efforts to achieve a comprehensive settlement of the Cyprus question. Madrid, 16 December 1995 The European Council reiterates the importance which it attaches to making substantial efforts to achieve a just and viable solution to the question of Cyprus in line with the United Nations Security Council resolutions, on the basis of a bi-zonal and bi-community federation. Dublin, 16 December 1996 The European Council urges Turkey to use its influence to contribute to a solution in Cyprus in accordance with UN Security Council resolutions. Luxembourg, 12 December 1997 The accession of Cyprus should benefit all communities and help to bring about civil peace and reconciliation. The accession negotiations will contribute positively to the search for a political solution to the Cyprus problem through the talks under the aegis of the United Nations which must continue with a view to creating a bi-community, bi-zonal federation. In this context, the European Council requests that the willingness of the Government of Cyprus to include representatives of the Turkish Cypriot community in the accession negotiating delegation be acted upon. In order for this request to be acted upon, the necessary contacts will be undertaken by the Presidency and the Commission. The European Council recalls that strengthening Turkey’s links with the European Union also depends on that country’s pursuit of the political and economic reforms on which it has embarked, including the alignment of human rights standards and practices with those in force in the European Union; respect for and protection of minorities; the establishment of satisfactory and stable relations between Greece and Turkey; the settlement of disputes, in 611

Part II: Cyprus–Europe Relations (1983–2006) particular by legal process, including the International Court of Justice; and support for negotiations under the aegis of the UN on a political settlement in Cyprus on the basis of the relevant UN Security Council Resolutions. Vienna, 11 December 1998 The European Council confirms its support for the efforts of the UN Secretary-General towards a comprehensive settlement in Cyprus and in particular for the process being developed by his Deputy Special Representative with the goal of reducing tensions and promoting progress towards a just and lasting settlement based on the relevant UNSC decisions. Helsinki, 11 December 1999 The European Council welcomes the launch of the talks aiming at a comprehensive settlement of the Cyprus problem on 3 December in New York and expresses its strong support for the UN Secretary-General’s efforts to bring the process to a successful conclusion. The European Council underlines that a political settlement will facilitate the accession of Cyprus to the European Union. If no settlement has been reached by the completion of accession negotiations, the Council’s decision on accession will be made without the above being a precondition. In this the Council will take account of all relevant factors. Nice, 8 December 2000 The European Council welcomed and strongly supports the efforts of the United Nations Secretary-General to achieve an overall agreement on the Cyprus problem consistent with the UN Security Council Resolutions and to arrive at a positive conclusion of the process initiated in December 1999. It appeals to all the parties concerned to contribute to the efforts made to this effect. Laeken, 15 December 2001 In recent months considerable progress has been made in the negotiations and certain delays have been made good. The European Union is determined to bring the accession negotiations with the candidate countries that are ready to a successful conclusion by the end of 2002, so that those countries can take part in the European Parliament elections in 2004 as members. Candidacies will continue to be assessed on their own merits, in accordance with the principle of differentiation. The European Council agrees with the report of the Commission, which considers that, if the present rate of progress of the negotiations and reforms in the candidate States is maintained, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, the Czech Republic and Slovenia could be ready. It appreciates the efforts made by Bulgaria and Romania and would encourage them to continue on that course. If those countries are to receive specific 612

The European Council support, there must be a precise framework with a timetable and an appropriate roadmap, the objective being to open negotiations with those countries on all chapters in 2002. Seville, 22 June 2002 In respect of the accession of Cyprus, the Helsinki conclusions are the basis of the European Union’s position. The European Union’s preference is still for the accession of a reunited island. The European Council fully supports the efforts of the Secretary-General of the United Nations and calls upon the leaders of the Greek Cypriot and Turkish Cypriot communities to intensify and expedite their talks in order to seize this unique window of opportunity for a comprehensive settlement, consistent with the relevant UN Security Council resolutions, it is to be hoped before the conclusion of the negotiations. The European Union would accommodate the terms of such a comprehensive settlement in the Treaty of Accession in line with the principles on which the European Union is founded: as a Member State, Cyprus will have to speak with a single voice and ensure proper application of European Union law. The European Union would make a substantial financial contribution in support of the development of the northern part of a reunited island. Copenhagen, 13 December 2002 Enlargement: The European Council in Copenhagen in 1993 launched an ambitious process to overcome the legacy of conflict and division in Europe. Today marks an unprecedented and historic milestone in completing this process with the conclusion of accession negotiations with Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. The Union now looks forward to welcoming these States as members from 1 May 2004. This achievement testifies to the common determination of the peoples of Europe to come together in a Union that has become the driving force for peace, democracy, stability and prosperity on our continent. As fully fledged members of a Union based on solidarity, these States will play a full role in shaping the further development of the European project. 49

Cyprus: In accordance with the above paragraph 3, as the accession negotiations have been completed with Cyprus, Cyprus will be admitted as a new Member State to the European Union. Nevertheless, the European Council confirms its strong preference for accession to the European Union by a united Cyprus. In this context it welcomes the commitment of the Greek Cypriots and the Turkish Cypriots to continue to negotiate with the objective of concluding a comprehensive settlement of the Cyprus problem by 28 February 2003 on 613

Part II: Cyprus–Europe Relations (1983–2006) the basis of the UNSG’s proposals. The European Council believes that those proposals offer a unique opportunity to reach a settlement in the coming weeks and urges the leaders of the Greek Cypriot and Turkish Cypriot communities to seize this opportunity. The Union recalls its willingness to accommodate the terms of a settlement in the Treaty of Accession in line with the principles on which the EU is founded. In case of a settlement, the Council, acting by unanimity on the basis of proposals by the Commission, shall decide upon adaptations of the terms concerning the accession of Cyprus to the EU with regard to the Turkish Cypriot community. The European Council has decided that, in the absence of a settlement, the application of the acquis to the northern part of the island shall be suspended, until the Council decides unanimously otherwise, on the basis of a proposal by the Commission. Meanwhile, the Council invites the Commission, in consultation with the government of Cyprus, to consider ways of promoting economic development of the northern part of Cyprus and bringing it closer to the Union. Declaration: The fact that, as things stand at present, Cyprus and Malta will not take part in EU military operations conducted using NATO assets once they have become members of the EU will not, within the limits of the EU Security Regulations, affect the right of their representatives to participate and vote in EU institutions and bodies, including COPS, with regard to decisions which do not concern the implementation of such operations.

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THE EUROPEAN PARLIAMENT _________________________________________________

59. European Parliament resolution on the missing persons in Cyprus, 11 January 1983 The European Parliament, A. Recalling the resolutions adopted by the United Nations concerning the problem of Cyprus since 1974, both as regards a solution to the general problem and as regards the fate of missing persons who disappeared after July 20, 1974, B. Recognising that families who still do not know the fate of those who are missing have been enduring great suffering for the last eight years as well as uncertainty as to their personal and legal status, C. Considering that every effort must be made by all those concerned to bring this suffering and uncertainty to a conclusion with all possible speed, D Confirming that the fundamental aspect of this problem is exclusively humanitarian, E. Affirming the inalienable right of all families to know the fate of a member of their family who has involuntarily disappeared due to the action of governments or their agents, F. Recalling that the ten-member states of the European Community, Cyprus and Turkey are High Contracting Parties to the European Convention on Human Rights and Fundamental Freedoms, with all the consequent legal obligations, G. Having regard to the motion for a resolution by Mr Bournias and others (doc. 1–34/81 rev.) concerning missing persons in Cyprus, H. Having regard to the motion for a resolution by Mrs Pruvot (doc. 1– 348/81 on the situation in Cyprus, I. Having regard to the Report of the Political Affairs Committee, 615

Part II: Cyprus–Europe Relations (1983–2006) 1. Urges the Committee on Missing Persons, established pursuant to UN resolutions, to meet and proceed with all investigations required; 2. Urges the International Committee of the Red Cross to provide all assistance necessary for the speedy and effective completion of these investigations so that the families of the missing persons may be convinced of their results; 3. Calls for the maximum cooperation between all the parties concerned, including the granting of access for the rapid conclusion of these investigations; 4. Supports the Working Group on Enforced and Involuntary Disappearances, set up by the UN Commission on Human Rights, in its attempts to achieve a solution to the problem of missing persons; 5. Recognises that the enjoyment of full human rights and fundamental freedoms as well as economic and social progress throughout the island will not be possible until the withdrawal of all foreign armed forces from the Republic of Cyprus; 6. Recognises also that further delay in solving the problem of missing persons impedes an early and peaceful solution of the problem of Cyprus as a whole; 7. Decides to monitor the progress made on this item; 8. Instructs the President to transmit this resolution to the Council of Ministers, to the Foreign Ministers in Political Cooperation, to the UN Secretary-General and to his Special Representative in Cyprus, to the governments of Cyprus and of Turkey, requesting the Foreign Ministers in Political Cooperation to report to the Parliament on progress made towards resolving this problem by June 1983.

60. European Parliament resolution on the unilateral declaration of independence, 17 November 1983 The European Parliament, A. having regard to the extremely critical situation facing Cyprus, B. whereas the United Nations Secretary-General has taken the initiative of proposing a solution to this grave problem on the basis of a dialogue between the two communities, C. affirming its resolutions upholding the independence, integrity and unity of Cyprus as a Member State of the United Nations Organization, 1. Condemns the action taken by the Turkish Cypriot sector to declare an independent Turkish Cypriot State in Cyprus; 616

The European Parliament 2. Calls on all the parties concerned to support the initiative of the UN Secretary-General; 3. Invites the Council of Ministers to take all the necessary measures so that this action by the Turkish Cypriot sector remains null and void; 4. Instructs its President to forward this resolution to the Commission, Council, the Foreign Ministers Meeting in Political Cooperation, the Governments of the 10 Member States of the Community, the Turkish Government and the UN Secretary-General.

61. European Parliament resolution on the situation in Cyprus, 10 March 1988 The European Parliament, • •

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• • •

• •

• •

•

having regard to the following motions for resolutions: motion for a resolution tabled by Mr MAVROS on the continued occupation of territory in the Republic of Cyprus by Turkish armed forces (Doc. B 2–1576/85), motion for a resolution tabled by Mr PORDEA, Mr DIMITRIADES, Mrs LEHIDEUX, Mr PETRONIO and Mr CAMARET on Cyprus (Doc. B 2– 1636/85), motion for a resolution tabled by Mr LOMAS, Mr NEWENS, Mr BALFE and Mr SEAL on the Turkish occupation of Cyprus (Doc. B 2–10/86), motion for a resolution tabled by Lady ELLES on the continuing problem of missing persons in Cyprus (Doc. B 2–1134/86), motion for a resolution tabled by Mr MAVROS on the distortion of the national identity of Cyprus by the Turkish occupation troops (Doc. B 2– 1175/86), motion for a resolution tabled by Mr LOMAS on missing people in Cyprus (Doc. B 2–1379/86), motion for a resolution tabled by Mr TRIDENTE on the case of the Turkish Cypriot Member of Parliament Mr Ozker Ozgur (Doc. B 2– 649/87), motion for a resolution tabled by Mr TRIDENTE and others on the ‘Women Walk Home’ movement (Doc. B 2–1252/87), having regard to the United Nations Charter and the resolutions by the United Nations General Assembly and Security Council on Cyprus, particularly on the Turkish military intervention of 1974 and on the consequences thereof, having regard to the Final Act of the Conference on Security and Cooperation in Europe,

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Part II: Cyprus–Europe Relations (1983–2006) • • • • •

•

having regard to the reports on Cyprus by the Council of Europe’s Commission of Human Rights, having regard to the resolutions adopted by the Council of Europe’s Committee of Ministers on 21 October 1977 and 20 January 1979, having regard to the various drafts drawn up by the United Nations Secretary-General in April 1985 and March 1986, having regard to the 1954 Convention of The Hague for the Protection of Cultural Property in the Event of Armed Conflict, having regard to the Paris Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, having regard to the report by the Political Affairs Committee (Doc. A 2– 317/87),

A. having regard to the Association Agreement between the Republic of Cyprus and the Community, B. whereas the constitution of 16 August 1960 enshrined the independence, unity and territorial integrity of the Republic of Cyprus, which is recognized by all the Member States of the United Nations and the European Community, C. noting that the coup d’état of 15 July 1974, remote-controlled by the dictatorship of the Greek colonels, led directly to Turkish military intervention which, following the restoration of democracy both in Greece and in Cyprus, was followed by a second military operation on a larger scale leading to the occupation of a large part of the island by Turkish troops and then the partitioning of the island and the unilateral proclamation of the ‘Turkish Republic of Northern Cyprus’ on 15 November 1983, D. whereas all the Foreign Ministers of the EEC Member States meeting in political cooperation have condemned the illegal proclamation of the ‘Turkish Republic of Northern Cyprus’ and have constantly supported international moves aimed at re-establishing the independence, unity and territorial integrity of the Republic of Cyprus, E. whereas no Member States of the EEC or the UN with the single exception of Turkey has recognized the existence of the ‘Turkish Republic of Northern Cyprus’, F. concerned that the continuing settlement of Turkish citizens from the mainland in the northern part of the island of Cyprus is changing the population structure and making the resolution of the conflict between the ethnic groups substantially harder, G. whereas the European Community has a concern for and an interest in seeing a political settlement of the Cyprus problem in keeping with the rules of democracy that will put an end to the military occupation of part of the Republic of Cyprus, re-establishing its unity and the state of law 618

The European Parliament over the whole of its territory, and whereas such a settlement is a requirement of its Mediterranean policy, one of the basic axes around which its activity revolves, I. On the re-establishment of a state of law in Cyprus 1. Calls on the Council, in order to facilitate the resumption and successful outcome of negotiations between the two communities, to devote special study to the possibility of an economic opening by the Community towards the Republic of Cyprus as a whole, the practical arrangements for such a move and its consequences, and also, in the long term, the question of Cyprus’s possible accession to the Community; 2. Notes that the unlawful occupation of part of the territory of a country associated with the Community by the military forces of another associate partner presents a major stumbling block to the normalization of relations with the latter, viz. Turkey; 3. Asks the Foreign Ministers meeting in political cooperation to consider the ways and means whereby a state of law might be re-established in Cyprus, and to devote particular attention to the possibility of a resumption of negotiations between the communities under the auspices of the United Nations Secretary-General, with the aim of conferring on the Republic of Cyprus the status of a federation, the constituent parts of which would be in proportion to the composition of the population which would guarantee the rights of the two communities, free the island from the presence of all foreign troops and guarantee freedom of movement, freedom of establishment and the property rights of members of both communities, and ensure the security of both the Greek and Turkish communities, and to keep the European Parliament informed on a regular basis; 4. Expects the Foreign Ministers meeting in political cooperation simultaneously to put pressure on the Turkish government, which is linked to the EEC by an association agreement and is an applicant for membership, to draw up a precise timetable for the withdrawal of its troops, in accordance with the proposals made by the UN Secretary-General, and that of the Turkish settlers, and to take a number of positive steps in accordance with international law, in particular by withdrawing a considerable part of its contingent without waiting for the final agreement between the two communities to be concluded; and giving the refugees from Famagusta the opportunity to return to and settle freely in their homes and expects the European Parliament to be kept regularly up-to-date on the initiatives adopted; II. On partial agreements to bring the two communities closer together 5. Asks the Foreign Ministers meeting in political cooperation to pave the way for partial intercommunal agreements providing, in particular, for a 619

Part II: Cyprus–Europe Relations (1983–2006) rewriting of the school books on both sides to give each community a positive image of the other and to teach the younger generation to know one another better, without hatred and in a spirit of respect for each other; 6. Also asks the Foreign Ministers meeting in political cooperation to recommend partial agreements between the two communities on, among other things, technical, economic, cultural and sporting exchanges between the two parts of the Republic, and stresses that such exchanges are a means of enhancing mutual understanding and forestalling fresh complaints; III. On the problem of missing people 7. Emphasizes that the families of the missing people have a right to know the truth and urges the Foreign Ministers meeting in political cooperation to redouble their efforts to find a positive solution, in agreement with the Government of the Republic of Cyprus and the representatives of the Turkish-Cypriot community, to this humanitarian problem and suggests that they endeavour to obtain agreement from all the sides involved to call in the International Committee of the Red Cross to carry out a search mission and take steps to ensure that it can carry out its mission unimpeded wherever it feels it can uncover relevant facts; 8. Draws the Ministers’ attention to the need to find a final solution to this painful problem without delay, particularly through the release of those missing people who might be detained in prison; IV. On the problem of cultural property 9a. Points out that the cultural heritage of each people must be preserved and condemns the systematic policy of expunging the past and the Hellenic and Christian culture pursued by Turkey in the part of Cyprus occupied by its troops, as regards both the imposition of place-names and the disappearance or transformation of the island’s cultural heritage; 9b. Views with deep concern the legal action launched by the TurkishCypriot leader Mr Rauf Denktash against the leader of the largest Turkish-Cypriot opposition party Mr Ozker Ozgur for alleged libel; notes with alarm that the award of C£ 100,000 damages against Mr Ozgur by a Turkish-Cypriot court will, if implemented, lead to the closure of Mr Ozgur’s party office and newspaper and to his personal bankruptcy. 10. Asks the Foreign Ministers meeting in political cooperation to make representations to the Turkish authorities and the representatives of the Turkish-Cypriot community to secure their agreement to UNESCO being entrusted with the task of preserving the Christian and Hellenic cultural heritage in the occupied part of the island; 11. Asks its President to place a reconsideration of the Cyprus situation on the agenda for debate within a year of the adoption of this resolution; 620

The European Parliament 12. Instructs its President to forward this resolution, with its explanatory statement, to the Commission, the Council, the Foreign Ministers meeting in political cooperation, the Government of the Republic of Cyprus, the representatives of the Turkish-Cypriot community, the Governments of the Member States and the Turkish Government, the United Nations Secretary-General, the Director-General of UNESCO and the SecretaryGeneral of the ICRC.

62. European Parliament resolution on the political situation following the UN-sponsored talks on Cyprus, 17 September 1997 The European Parliament, •

having regard to its previous resolutions on the political situation in Cyprus and Turkey, (ELDR, mod.)

A. noting the public statement by the President of the Security Council, Sir John Weston, in which he identified the Council’s concern and disappointment that further substantive progress was impeded by the attempt by the Turkish Cypriots to bring preconditions to the table, B. welcoming the statement made by Commissioner Van den Broek on 22 August 1997 and Council President Jacques Poos, on 26 August 1997 about the lack of progress on the Cyprus issue, C. drawing attention to the references of Cyprus in the Commission document Agenda 2000 – for a Stronger and Wider Union, and to the European Council’s undertaking in Florence in June 1996, that ‘Accession negotiations with Cyprus should start six months after the conclusion of the IGC’, D. maintaining that negotiations for accession to the Union should benefit both communities, 1. Denounces the joint declaration and the implementing measures, signed by Turkey and the illegal regime in the occupied areas of the Republic of Cyprus, which threaten to annex the occupied part of the island to Turkey, as illegal, provocative and not conducive to creating the right negotiating climate for the talks; 2. Is appalled at all statements by Rauf Denktash, Leader of the Turkish Cypriot Community, that there will be war in Cyprus if its application to join the EU is successful, and demands their total withdrawal; 3. Regrets the precondition for progress in the direct talks set by Mr Denk621

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4.

5.

6.

7.

8.

9. 10.

tash – the freezing of the accession negotiations with Cyprus – and confirms its clear expectation that these negotiations will be launched by the beginning of 1998 as agreed by the EU in March 1995 and as expressed in Agenda 2000, i.e. ‘if progress towards a settlement is not made before the negotiations are due to begin, they should be opened with the Government of the Republic of Cyprus, as the only authority recognized by international law’; Welcomes the outcome of the meeting between President Clerides and Rauf Denktash in Nicosia on humanitarian issues, in particular measures concerning investigations into the fate of the missing people of Cyprus, and expresses its hope that these efforts will continue despite the outcome of the Montreux talks; Welcomes the recent announcement that President Clerides and Mr Denktash will meet to discuss security issues, including demilitarisation of the island, and in this context draws attention to the excessive buildup of arms on the island; urges both parties to exercise the utmost restraint with regard to military deployment; Recognises that there are Turkish Cypriot voices which oppose Mr Denktash and appeals to the Government of Cyprus and the Turkish Cypriot community to continue to look for a peaceful and just solution to the Cyprus issue in accordance with UN Security Council resolutions; Reminds the Turkish Government that constructive relations between Turkey and the EU depend partly on the Turkish Government’s policy on Cyprus; Calls on the Union and on all Member States to maintain firm pressure on Turkey to contribute positively to a just solution of the Cyprus problem and to ensure that they facilitate the commencement of accession negotiations with Cyprus by the beginning of 1998; Notes the role that the United States can play in contributing to a just solution of the Cyprus problem; Instructs its President to forward this resolution to the Council, the Commission and the governments of the Member States, Cyprus, and Turkey, and the United Nations Secretary-General.

63. European Parliament resolution on Cyprus’s membership application to the European Union and the state of negotiations, 5 September 2001 The European Parliament, •

622

having regard to Cyprus’s application for membership of the European

The European Parliament

• • •

•

•

•

• • • • •

Union, submitted on 3 July 1990 pursuant to Article 49 of the Treaty on European Union, having regard to the accession negotiations opened with the Republic of Cyprus on 31 March 1998, having regard to the third Regular Report from the Commission on Cyprus’s progress toward accession (COM (2000) 702 – C5-0602/2000), having regard to the Enlargement Strategy Paper on progress towards accession by each of the candidate countries, presented by the Commission (COM (2000) 700), having regard to the decisions taken by the European Councils of Copenhagen (21 and 22 June 1993), Florence (21 and 22 June 1996), Luxembourg (12 and 13 December 19997), Helsinki (10 and 11 December 1999), Nice (7–9 December 2000) and Göteborg (15 and 16 June 2001), having regard to Council Regulation (EC) No 555/2000 of 13 March 2000 on the implementation of operations in the framework of the pre-accession strategy for the Republic of Cyprus and the Republic of Malta, the Council Decision of 20 March 2000 on the principles, priorities, objectives and conditions contained in the Accession Partnership with the Republic of Cyprus and Council Regulation (EC) No 390/2001 of 26 February 2001 on assistance to Turkey in the framework of the pre-accession strategy, and in particular on the establishment of an Accession Partnership, having regard to its resolutions of 15 April 1999 (COM (1998) 710 – C4– 0108/99) and of 4 October 2000 (COM(1999) 502 – C5–0025/2000– 1977/2171 (COS)) on Cyprus’ progress toward accession, having regard to its resolution of 15 November 2000 on Turkey’s progress towards accession (1999), having regard to the final declaration of the meeting of the EU–Cyprus Joint Parliamentary Committee held on 27 March 2001 in Limassol, having regard to the conclusions of the EU–Cyprus Association Council held in Brussels on 15 May 2001, having regard to Rule 47 (1) of its Rules of Procedure, having regard to the report of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy and the opinions of the other committees concerned (A5–0261/2001),

A. whereas the Republic of Cyprus (hereafter referred to as ‘Cyprus’), the only State internationally recognised as representing the island as a whole, satisfies fully the Copenhagen political and economic criteria as far as is within its power (the division of the island), has made significant progress in adopting the acquis communautaire, and may, therefore, expect to accede to the European Union rapidly, B. whereas the only legislation that is in compliance with European standards is legislation that eliminates all provisions that specifically criminalize homosexual relations, 623

Part II: Cyprus–Europe Relations (1983–2006) C. whereas the Government of Cyprus is negotiating EU accession on behalf of all Cypriots, and whereas, when the accession process is successfully concluded, the entire island and all its citizens will legally be part of the European Union, D. whereas Cyprus, as a candidate country, is in the paradoxical situation whereby for 27 years 37% of its territory has been occupied by Turkey; whereas, since the fall of the Berlin Wall, Nicosia is the only divided capital city in Europe, E. whereas the accession process and accession itself could serve as a catalyst for the peace effort aimed at achieving a political solution to the problem of partition of the island; whereas a unified and peaceful Cyprus would bring increased prosperity to the island’s population as a whole and increased security to the region, F. supporting unreservedly all peace efforts by the United Nations, including the batch of proposals put forward by the UN Secretary-General in November 2000, proposing the creation of a joint State with a single international personality, sovereign and indivisible, which would have a single citizenship and guarantee fundamental freedoms and human rights. (The joint State would be composed of two constituent States, each having a large degree of autonomy.) G. whereas Mr Denktash, with Turkey’s backing, withdrew unilaterally from the fifth round of UN-sponsored ‘proximity talks’, plunging the negotiations into impasse, which the diplomatic efforts made so far have not succeeded in reopening, H. whereas the Helsinki European Council and high-level Community fora that followed it indicated repeatedly that a political solution was not a precondition for Cyprus’s accession to the EU, although such a solution prior to accession is highly desirable, I. whereas the impasse in the negotiations also has a negative impact on the solution of humanitarian problems such as that of the large number of Cypriot civilians, women and children among them, missing since the Turkish invasion of 1974; whereas Turkey has remained impassive to repeated requests for initiatives by the Council of Europe’s Commission of Human Rights, J. whereas on 10 May 2001 the European Court of Human Rights ruled that Turkey was guilty of human rights violations in the northern part of Cyprus, K. whereas documented plundering of monasteries, churches and cultural buildings has taken place during the Turkish occupation of northern Cyprus, L. whereas Turkey has still not responded to the judgment of the Strasbourg European Court of Human Rights ruling that it is guilty of violating the rights of the Greek Cypriot citizen Titina Loizidou; whereas Turkey continues to maintain an embargo on all vessels flying the Cypriot flag, 624

The European Parliament M. whereas the 2000 Regular Report makes reference, for the first time, to the difficult economic situation in the northern part of the island; whereas the evidence is that a large majority of both communities would welcome the accession of the whole island of Cyprus to the European Union, Political situation 1. Reiterates its wholehearted support for the efforts of the UN SecretaryGeneral in finding a comprehensive and rapid solution, and for his longstanding view that any acceptable solution must be based on international law, as set out in the resolutions adopted by the United Nations Security Council (UNSC), even if a gradual implementation of the acquis in the north of the island could be envisaged, if that might facilitate the end of partition; 2. Reiterates its support for the conclusions of the Helsinki European Council whereby resolution of the Cyprus question is not a prerequisite for accession; endorses unreservedly the position set out by Commissioner Verheugen, i.e. that there is no possibility of separate negotiations with the two parts of the island, and no question either of accession for two Cypriot states or of accession of the northern part of the island upon Turkish accession; 3. Stresses that if Turkey were to carry out its threat of annexing the north of Cyprus in response to Cypriot accession to the EU and to proclaim the northern part as its 82nd province in clear breach of international law, it would put an end to its own ambitions of European Union membership; 4. Invites Turkey to regard the membership of Cyprus as an important contribution not only for the secure existence and development of both communities but also for the welfare of all its citizens; considers that Cyprus’s membership, in combination with the demilitarisation of the island and security guarantees by the European Union, could be an enormous step towards peace and stability in the region and would strengthen the accession partnership between Turkey and the EU; 5. Deplores the unjustified unilateral withdrawal by Mr Denktash from the UN-sponsored proximity talks and urges him to agree to start a new round of direct substantial talks; 6. Rejects the formula used by Turkey in its National Programme for the Adoption of the Acquis (NPAA) with regard to Cyprus, which it considers contrary to international law, UN General Assembly Resolution 3212/74 and UN Security Council Resolution 541, the proposals of the UN Secretary-General and the acquis communautaire; 7. Welcomes, therefore, the ‘enhanced political dialogue’ launched at the end of March 2001 between EU and Turkey, and the fact that the EU has concluded Accession Partnerships with Cyprus and Turkey, positive initiatives that could provide a framework for resolution of the Cyprus question; 625

Part II: Cyprus–Europe Relations (1983–2006) 8. Calls on the Commission, in this connection, to put on the agenda for the next meeting with Turkey the issue of missing persons, and urges Turkey to comply forthwith with the general and individual judgments of the European Court of Human Rights; 9. Calls on the Commission and Council to maintain the European Union’s firm commitment to a negotiated settlement with a view to ending partition of the island, and to use all appropriate instruments at their disposal to speed up the process; Transposition of the acquis communautaire 10. Reiterates its satisfaction at the progress made by Cyprus in the accession negotiations; notes that, to date, 22 of the 29 chapters have been provisionally closed, placing Cyprus at the forefront of the candidate countries; urges the Cypriot Government, therefore, to continue its efforts to transpose completely and implement the acquis communautaire so that the accession negotiations may be concluded as soon as possible; 11. Stresses that Cyprus satisfies the Copenhagen political and economic criteria as far as is within its power (the division of the island), and that its progress on the adoption of the acquis communautaire continues to be excellent; 12. Draws attention to the fact that, while Cyprus satisfies the Copenhagen political and economic criteria, its macroeconomic stability has deteriorated recently and its current budgetary policy may not be sustainable over the medium term, a situation that must be monitored carefully; 13. Notes that while the acquis communautaire as a whole is being adopted quickly, certain areas nevertheless require special attention: the environment as a whole, particularly aspects such as waste management and water quantity and quality, the implementation of mechanisms of the agricultural acquis, the free movement of persons, State aid, monitoring of the structure of the banking sector, border controls and maritime safety must all be matters of priority for Cyprus; stresses that, if the negotiations proceed at their current pace, these problems should not be insurmountable; 14. Notes that negotiations on the environment chapter have been opened but not yet completed with Cyprus; calls for any transition periods for full compliance with the acquis to be kept to a minimum, and for the establishment of intermediate targets; 15. Calls on Cyprus to put into place mechanisms necessary to link effectively to the Community’s Rapid Alert System, both in terms of alerting the European Food Safety Authority of any serious perceived or identified risk and in terms of action to be taken by the RAS as a result of an EFSA warning; 16. Encourages the participation of Cyprus in the Community’s new health action programme, launched in 2000. 17. Stresses that, like the other candidate countries, Cyprus must enhance its 626

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18.

19.

20.

21.

22.

23.

24. 25.

administrative and judicial capacity to enable it to implement correctly the acquis communautaire; Notes that direct payments to agricultural producers are playing an important and controversial role in the accession negotiations; stresses the need to bring direct payments within the sphere of the ‘second pillar’ of the CAP by compulsorily tying premiums to social and ecological criteria (cross-compliance and modulation) in order to make them less controversial and guarantee that direct payments in an enlarged Union will be uniformly determined; Notes that progress has been made in preparing Cypriot agriculture for the CAP, but draws attention to the fact that major components of the agriculture acquis have still not been taken over, in particular as regards the abolition of government monopolies; recommends also that Cyprus establish the requisite administrative and procedural structures; Welcomes the – primarily inter-occupational and tripartite – social dialogue, and urges that bipartite and sectoral social dialogues each be strengthened and broadened; Urges the Cyprus legislature to drop forms of discrimination not permitted under Community law from the rules adopted on access to the labour market and working life, in particular requirements relating to nationality, place of residence, membership of occupational associations and certificates of good character; Points out that adoption of the Community acquis concerning equality between women and men is an essential condition for membership, as this is an integral part of the human rights question and the institutional development needed in this connection is an essential part of full implementation of the acquis; Notes that despite the good standard of Cyprus’s system of internal and external financial control, the Cypriot Government still needs to strengthen the independence of internal auditing within the government; Urges Cyprus to take the necessary steps to ensure the proper management of pre-accession funding and future structural funds; Calls upon the Cyprus government to eliminate provisions in the penal code that discriminate against homosexual men and lesbian women, notably Article 171, a provision that has been declared contrary to the European Convention on Human Rights by the European Commission of Human Rights;

Recent political developments 26. Expresses its concern over the Akamas peninsula and calls on the Cypriot Government to ensure that it is protected as an environment area of European importance, paying special attention to the conservation and protection of wild birds; 27. Welcomes contacts, projects and dialogue at all levels between the two 627

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28.

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30.

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32. 33. 34.

35.

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communities as elements necessary to confidence-building; considers that events such as the festival organised recently by two political parties from the two communities in the UN buffer zone can play a role in bringing the island’s two communities closer together, but judges that they still remain too limited in scope and participation; Calls on the Commission to support and develop further bi-communal activities, making funding more easily available for appropriate projects; urges the Turkish Cypriot representatives to allow the members of their community to fully participate in them; invites the Republic of Cyprus to facilitate the organisation of such events also by easing its criteria for the selection of participants; Insists that a tone of reconciliation be used by leading Cypriot political representatives in their references to the other community and that urgent steps be taken to overcome the economic isolation of the north; Considers that the elaboration, the funding and the implementation of joint projects of eco-tourism for the Akamas and the Karpas area, the cleaning of the area of the copper mines of Lefke, as well as water and waste management projects could all represent challenging opportunities for cooperation between the two communities; Proposes that contacts be developed between the European Parliament and Turkish Cypriot community representatives, civil society, journalists and all Turkish Cypriot political parties; Expresses its concern at the repression of freedom of expression and of opposition in the occupied part of the island; Welcomes the enthusiasm for Cypriot membership of the EU and points out that the climate of opinion is mostly in favour of accession; Calls on the Commission, in this respect, to intensify its contacts in the northern part of the island in order to inform the whole population of the advantages of EU accession; Welcomes the talks between Mr Verheugen and Mr Denktash of 27 August 2001 and between Mr Kofi Annan and Mr Denktash of 28 August 2001, and hopes that these have given a fresh impetus to the forces of reconciliation; Expresses its concern about the fears (expressed by representatives of the Turkish Cypriot community) regarding the intimidation suffered by supporters of the EU at the hands of a recently established nationalist organisation with official backing in the occupied part; strongly condemns the recent bomb attack on the offices of the Turkish Cypriot newspaper Avrupa; Is delighted at the continued dialogue with Cyprus in connection with the Common European Security and Defence Policy; Calls on Turkey to recognise UN Security Council Resolution 1354/01, which was adopted unanimously on 15 June 2001, concerning the sixmonth extension to the mandate of UNFICYP;

The European Parliament 39. Instructs its President to forward this resolution to the Council, the Commission, the Parliaments of the Member States, the Government and Parliament of the Republic of Cyprus and the Government and Grand National Assembly of Turkey.

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THE ACCESSION PROCESS __________________________________________

64. EU Accession Treaty: protocols on Cyprus The Protocol on Cyprus The Protocol on Cyprus, attached to the Treaty of Accession signed on 16 April 2003 by the Republic of Cyprus, provides for the suspension of the application of the Acquis Communautaire in those areas of the Republic of Cyprus, where the Government of the Republic does not exercise effective control. The Protocol states that in the event of a political settlement, the European Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the adaptations to the terms concerning the accession of Cyprus to the European Union with regard to the Turkish Cypriot community. It notes that nothing in the Protocol shall preclude measures with a view to promoting the economic development of the areas the Government does not exercise effective control of and that such measures shall not affect the application of the Acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus. The protocol underlines that the EU is ready to accommodate the terms of a settlement in line with the principles on which the EU is founded and expresses the Union’s desire that the accession of Cyprus should benefit all Cypriot citizens. The contracting parties reaffirm, in the protocol, their commitment to a comprehensive settlement of the Cyprus problem, consistent with relevant UN Security Council resolutions and their strong support for the efforts of the UN Secretary-General to that end. The full text of the Protocol reads as follows: The High Contracting Parties, Reaffirming their commitment to a comprehensive settlement of the Cyprus problem, consistent with relevant United Nations Security Resolutions, and their strong support for the efforts of the United Nations SecretaryGeneral to that end, 631

Part II: Cyprus–Europe Relations (1983–2006) Considering that such a comprehensive settlement to the Cyprus problem has not yet been reached, Considering that it is, therefore, necessary to provide for the suspension of the application of the acquis in those areas of the Republic of Cyprus in which the government of the Republic of Cyprus does not exercise effective control, Considering that, in the event of a solution to the Cyprus problem this suspension shall be lifted, Considering that the European Union is ready to accommodate the terms of such a settlement in line with the principles on which the EU is founded, Considering that it is necessary to provide for the terms under which the relevant provisions of EU law will apply to the line between the abovementioned areas and both those areas in which the government of the Republic of Cyprus exercises effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Northern Ireland, Desiring that the accession of Cyprus to the European Union shall benefit all Cypriot citizens and promote civil peace and reconciliation, Considering, therefore, that nothing in this Protocol shall preclude measures with this end in view, Considering that such measures shall not affect the application of the acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus, Have agreed upon the following provisions: Article 1 1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1. Article 2 1. The Council, acting unanimously on the basis of a proposal from the Commission, shall define the terms under which the provisions of EU law shall apply to the line between those areas referred to in Article 1 and the areas in which the Government of the Republic of Cyprus exercises effective control. 2. The boundary between the Eastern Sovereign Base Area and those areas referred to in Article 1 shall be treated as part of the external borders of the Sovereign Base Areas for the purpose of Part IV of the Annex to the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus for the duration of the suspension of the application of the acquis according to Article 1. 632

The Accession Process Article 3 1. Nothing in the Protocol shall preclude measures with a view to promoting the economic development of the areas referred to in Article 1. 2. Such measures shall not affect the application of the acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus. Article 4 In the event of a settlement, the Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the adaptations to the terms concerning the accession of Cyprus to the European Union with regard to the Turkish Cypriot Community. Protocol No 3 on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus The Accession Treaty which the Republic of Cyprus signed with the European Union shall not apply to the British Sovereign Bases in Cyprus, except to the extent necessary to ensure the implementation of agreed arrangements. These arrangements relate to the conditions of accession of the Republic of Cyprus and another nine countries, who signed the Accession Treaty with the EU. The Protocol on the British Bases in Cyprus stipulates that the arrangements provided for in this Protocol shall have the sole purpose of regulating the particular situation of the Sovereign Base Areas of the United Kingdom in Cyprus and shall not apply to any other territory of the Community, nor serve as a precedent, whole or in part, for any other special arrangements which either already exist or which might be set up in another European territory provided for in Article 299 of the Treaty. According to the Protocol persons resident or employed in the territory of the Sovereign Base Areas, who are subject to the social security legislation of the Republic of Cyprus, shall be treated as if they were resident or employed in the territory of the Republic of Cyprus. The Protocol notes that the Republic of Cyprus shall not be required to carry out checks on persons crossing their land and sea boundaries with the Sovereign Base Areas and any Community restrictions on the crossing of external borders shall not apply in relation to such persons and the United Kingdom shall exercise controls on persons crossing the external borders of the Sovereign Base Areas. The full text of the Protocol reads as follows: The High Contracting Parties, Recalling that the Joint Declaration on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Final Act of the Treaty concerning the Accession of the United Kingdom 633

Part II: Cyprus–Europe Relations (1983–2006) to the European Communities provided that the arrangements applicable to relations between the European Economic Community and the Sovereign Base Areas will be defined within the context of any agreement between the Community and the Republic of Cyprus, Taking account of the provisions concerning the Sovereign Base Areas set out in the Treaty concerning the Establishment of the Republic of Cyprus (hereafter referred to as the ‘Treaty of Establishment’) and the associated Exchanges of Notes dated 16 August 1960, Noting the Exchange of Notes between the Government of the United Kingdom and the Government of the Republic of Cyprus concerning the administration of the Sovereign Base Areas, dated 16 August 1960, and the attached Declaration by the United Kingdom Government that one of the main objects to be achieved is the protection of the interests of those resident or working in the Sovereign Base Areas, and considering in this context that the said persons should have, to the extent possible, the same treatment as those resident or working in the Republic of Cyprus, Noting further the provisions of the Treaty of Establishment regarding customs arrangements between the Sovereign Base Areas of the Republic of Cyprus and in particular those of Annex F to the said Treaty, Noting also the commitment of the United Kingdom not to create customs posts or other frontier barriers between the Sovereign Base Areas and the Republic of Cyprus and the arrangements made pursuant to the Treaty of Establishment whereby the authorities of the Republic of Cyprus administer a wider range of public services in the Sovereign Base Areas, including in the fields of agriculture, customs and taxation, Confirming that the accession of the Republic of Cyprus to the European Union should not affect the rights and obligation of the parties to the Treaty of Establishment, Recognising therefore the need to apply certain provisions of the Treaty Establishing the European Community and related EC law to the Sovereign Base Areas and to make special arrangements regarding the implementation of these provisions in the Sovereign Base Areas, Have agreed upon the following provisions: Article 1 Article 299 (6) (b) of the Treaty establishing the European Community shall be replaced by the following: ‘(b) This Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the 634

The Accession Process Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol.’ Article 2 1. The Sovereign Base Areas shall be included within the customs territory of the Community and, for this purpose, the customs and common commercial policy acts listed in Part One of the Annex to this Protocol shall apply to the Sovereign Base Areas with the amendments set out in the Annex. 2. The acts on turnover taxes, excise duties and other forms of indirect taxation listed in Part Two of the Annex to this Protocol shall apply to the Sovereign Base Areas with the amendments set out in the Annex as well as the relevant provisions applying to Cyprus as set out in the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union. 3. The acts listed in Part Three of the Annex to this Protocol shall be amended as set out in the Annex to enable the United Kingdom to maintain the reliefs and exemptions from duties and taxes on supplies to its forces and associated personnel which are granted by the Treaty of Establishment. Article 3 The following Treaty and related provisions shall apply to the Sovereign Base Areas: (a) Title II of Part Three of the EC Treaty, on agriculture, and provisions adopted on the basis; (b) Measures adopted under Article 152 (4) (b) of the EC Treaty. Article 4 Persons resident or employed in the territory of the Sovereign Base Areas who, under arrangements made pursuant to the Treaty of Establishment and the associated Exchange of Notes dated 16 August 1960, are subject to the social security legislation of the Republic of Cyprus shall be treated for the purposes of the Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community as if they were resident or employed in the territory of the Republic of Cyprus. 635

Part II: Cyprus–Europe Relations (1983–2006) Article 5 1. The Republic of Cyprus shall not be required to carry out checks on persons crossing their land and sea boundaries with the Sovereign Base Areas and any Community restrictions on the crossing of external borders shall not apply in relation to such persons. 2. The United Kingdom shall exercise controls on persons crossing the external borders of the Sovereign Base Areas in accordance with the undertakings set out in Part Four of the Annex to this Protocol. Article 6 The Council, acting unanimously on a proposal from the Commission, may, in order to ensure effective implementation of the objectives of this Protocol, amend Articles 2 to 5 above, including the Annex, or apply other provisions of the EC Treaty and related Community legislation to the Sovereign Base Areas on such terms and subject to such conditions as it may specify. The Commission shall consult the United Kingdom and the Republic of Cyprus before bringing forward a proposal. Article 7 1. Subject to paragraph 2, the United Kingdom shall be responsible for the implementation of the Protocol in Sovereign Base Areas. In particular: (a) the United Kingdom shall be responsible for the application of the Community measures specified in this Protocol in the fields of customs, indirect taxation and the common commercial policy in relation to goods entering or leaving the island of Cyprus through a port or airport within the Sovereign Base Areas; (b) customs controls on goods imported into or exported from the island of Cyprus by the forces of the United Kingdom through a port or airport in the Republic of Cyprus may be carried out within the Sovereign Base Areas; (c) the United Kingdom shall be responsible for issuing any licences, authorizations or certificates which may be required under any applicable Community measure in respect of goods imported into or exported from the island of Cyprus by the forces of the United Kingdom. 2. The Republic of Cyprus shall be responsible for the administration and payment of any Community funds to which persons in the Sovereign Base Areas may be entitled pursuant to the application of the common agricultural policy in the Sovereign Base Areas under Article 3 of this Protocol and the Republic of Cyprus shall be accountable to the Commission for such expenditure. 3. Without prejudice to paragraphs 1 and 2, the United Kingdom may delegate to the competent authorities of the Republic of Cyprus, in accor636

The Accession Process dance with arrangements made pursuant to the Treaty of Establishment, the performance of any functions imposed on a Member State by or under any provision referred to in Articles 2 to 5 above. 4. The United Kingdom and the Republic of Cyprus shall cooperate to ensure the effective implementation of this Protocol in the Sovereign Base Areas, and where appropriate, shall conclude further arrangements concerning the delegation of the implementation of any of the provisions referred to in Articles 2 to 5 and above. A copy of any such arrangements shall be submitted to the Commission. Article 8 The arrangements provided for in this Protocol shall have the sole purpose of regulating the particular situation of the Sovereign Base Areas of the United Kingdom in Cyprus and shall not apply to any other territory of the Community, nor serve as a precedent, in whole or in part, for any other special arrangements which either already exist or which might be set up in another European territory provided for in Article 299 of the Treaty. Article 9 The Commission shall report to the European Parliament and the Council every five years on the implementation of the provisions of this Protocol. ANNEX References to this Protocol to Directives and Regulations shall be interpreted as references to those Directives and Regulations as amended or substituted from time to time and their implementing acts. PART I 1. Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code of which Article 3 (2) shall be replaced by the following: ‘2. The following territories situated outside the territory of the Member States shall, taking the conventions and treaties applicable to them into account, be considered to be part of the customs territory of the Community: (a) FRANCE The territory of the principality of Monaco as defined in the Customs Convention signed in Paris on 18 May 1963 (Official Journal of the French Republic of 27 September 1963, p. 8679) (b) CYPRUS The territory of the United Kingdom Sovereign Base Areas of Akrotiri 637

Part II: Cyprus–Europe Relations (1983–2006) and Dhekelia as defined in the Treaty concerning the Establishment of the Republic of Cyprus, signed in Nicosia, on 16 August 1960 (United Kingdom Treaty Series No 4 (1961) Cmnd. 1252)’; 2. Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff; 3. Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty; 4. Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code; 5. Council Regulation (EEC) No 3677/90 of 13 December 1990 laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances; 6. Council Directive 92/109/EEC of 14 December 1992 on the manufacture and the placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances; 7. Council Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural goods; 8. Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights; 9. Commission Regulation (EC) No 1367/95 of 16 June 1995 laying down provisions for the implementation of Council Regulation (EC) No 3295/94 laying down measures concerning the entry into to the Community and the export and re-export from the Community of goods infringing certain intellectual property rights; 10. Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology. Part II 1. Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment of which: a) Article 3 (4), first subparagraph, shall be replaced by the following: ‘By way of derogation from paragraph 1, in view of:

638

The Accession Process •

•

the conventions and treaties which the Principality of Monaco and the Isle of Man have concluded respectively with the French Republic and the United Kingdom of Great Britain and Northern Ireland, the Treaty concerning the Establishment of the Republic of Cyprus, the Principality of Monaco, the Isle of Man and the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia shall not be treated for the purpose of the application of this Directive as third territories.’

b) Article 3(4), second subparagraph, shall be amended by the addition of a third indent as follows: •

‘the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia are treated as transactions originating in or intended for the Republic of Cyprus.’

2. Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products: Article 2 (4) shall be amended by the addition of a fifth indent as follows: •

‘the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia are treated as transactions originating in or intended for the Republic of Cyprus.’

Part III 1. Article 135 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty shall be amended by the addition of a new point (d), as follows: ‘(d) by the United Kingdom of the reliefs on importations of goods for the use of its forces or the civilian staff accompanying them or for supplying their messes or canteens resulting from the Treaty of Establishment concerning the Republic of Cyprus, dated 16 August 1960’. 2. Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, shall be amended: (a) by the insertion of a fourth indent in Article 14 (1) point (g), as follows: •

‘The exemptions set out in the third indent, shall extend to imports by and supplies of goods and services to the forces of the United Kingdom stationed in the island of Cyprus pursuant to the Treaty of Establishment 639

Part II: Cyprus–Europe Relations (1983–2006) concerning the Republic of Cyprus, dated 16 August 1960, which are for the use of the forces or the civilian staff accompanying them for supplying their messes or canteens.’ (b) by the replacement of point (b) of Article 17(3) with the following: ‘(b) transactions which are exempt under Article 14(1)(g)(i) and under Articles 15, and 16(1)(B) and (C), and paragraph 2’. 3. Article 23 (1), first subparagraph, of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products shall be amended by the addition of a new indent, as follows: •

‘for the armed forces of the United Kingdom stationed in the island of Cyprus pursuant to the Treaty of Establishment concerning the Republic of Cyprus dated 16 August 1960, for the use of those forces, for the civilian staff accompanying them or for supplying their messes or canteens’.

Part IV 1. In this Protocol: (a) ‘external borders of the Sovereigns Base Areas’ means their sea boundaries and their airports and seaports, but not their land or sea boundaries with the Republic of Cyprus; (b) ‘crossing points’ shall mean any crossing point authorised by the competent authorities of the United Kingdom for the crossing of external borders. 2. The United Kingdom shall only allow the external borders of the Sovereign Base Areas to be crossed at crossing points. 3. (a) Nationals of third countries shall only be permitted to cross the external borders of the Sovereign Base Areas if: i ii

they possess a valid travel document; they are in possession of a valid visa for the Republic of Cyprus, if required; iii they are engaged in defence-related activity or are the family member of a person who is engaged in such activity; and iv they are not a threat to national security. (b) The United Kingdom may only derogate from these conditions on humanitarian grounds, on grounds of national interest or in order to comply with its international obligations. 640

The Accession Process (c) For the purpose of the undertaking in letter (a) (ii) members of a force, civilian component and dependants, as defined in annex C to the Treaty of Establishment, shall be treated as not requiring a visa for the Republic of Cyprus. 4. The United Kingdom shall carry out checks on persons crossing the external borders of the Sovereign Base Areas. These checks shall include the verification of travel documents. All persons shall undergo at least one such check in order to establish their identity. 5. The competent authorities of the United Kingdom shall use mobile units to carry out external border surveillance between border crossing points and at crossing points outside of normal opening hours. This surveillance shall be carried out in such a way as to discourage people from circumventing the checks at crossing points. The competent authorities of the United Kingdom shall deploy enough suitably qualified officers to carry out checks and surveillance along the external borders of the Sovereign Base Areas. 6. The United Kingdom authorities shall maintain constant close cooperation with the authorities of the Republic of Cyprus with a view to the effective implementation of checks and surveillance. 7. a) An applicant for asylum who first entered the island of Cyprus from outside the European Community by one of the Sovereign Base Areas shall be taken back or readmitted to the Sovereign Base Areas at the request of the Member State of the European Community in whose territory the applicant is present. b) The Republic of Cyprus, bearing in mind humanitarian considerations, shall work with the United Kingdom with a view to devising practical ways and means of respecting the rights and satisfying the needs of asylum seekers and illegal migrants in the Sovereign Base Areas, in accordance with the relevant Sovereign Base Area Administration legislation. Declaration by the European Commission The European Commission confirms its understanding that the provisions of Community law applicable to the Sovereign Base Areas pursuant to Article 3 (a) of this Protocol include: (a) Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products; (b) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds, to the extent required by Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agriculture Guidance and 641

Part II: Cyprus–Europe Relations (1983–2006) Guarantee Fund (EAGGF) for the purpose of financing rural development measures in the Sovereign Base Areas under the EAGGF Guarantee Section.

65. Council regulation on a regime under Article 2 of Protocol 10 of the Act of Accession, 28 April 2004 (known as the ‘Green Line Regulation’) COUNCIL OF THE EUROPEAN UNION Brussels, 28 April 2004 8983/04 The Council of the European Union, Having regard to Protocol No. 10 on Cyprus of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the 50 Treaties on which the European Union is founded, and in particular Article 2 thereof, Having regard to Protocol No. 3 on the Sovereign Base Areas of the United 51 Kingdom of Great Britain and Northern Ireland in Cyprus of the said Act of Accession, and in particular Article 6 thereof, 52 Having regard to the proposal from the Commission, Whereas: 4. The European Council has repeatedly underlined its strong preference for accession by a reunited Cyprus. Regrettably, a comprehensive settlement has not yet been reached. In conformity with paragraph 12 of the conclusions of the European Council in Copenhagen, the Council on 26 April 2004 outlined its position on the current situation on the island. 5. Pending a settlement, the application of the acquis upon accession has therefore been suspended pursuant to Article 1(1) of Protocol No. 10, in the areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 6. Pursuant to Article 2 (1) of Protocol No. 10, this suspension makes it necessary to provide for the terms under which the relevant provisions of EU law shall apply to the line between the above-mentioned areas and those areas in which the Government of the Republic of Cyprus exercises

642

The Accession Process effective control. In order to ensure the effectiveness of these rules, their application has to be extended to the boundary between the areas in which the Government of the Republic of Cyprus does not exercise effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Northern Ireland. 7. Since the above-mentioned line does not constitute an external border of the EU, special rules concerning the crossing of goods, services and persons need to be established, the prime responsibility for which belongs to the Republic of Cyprus. As the above-mentioned areas are temporarily outside the customs and fiscal territory of the Community and outside the area of freedom, justice and security, the special rules should secure an equivalent standard of protection of the security of the EU with regard to illegal immigration and threats to public order, and of its economic interests as far as the movement of goods is concerned. Until sufficient information is available with regard to the state of animal health in the above-mentioned areas, the movement of animals and animal products will be prohibited. 8. Article 3 of Protocol No. 10 explicitly states that measures promoting economic development in the above-mentioned areas are not precluded by the suspension of the acquis. This regulation is intended to facilitate trade and other links between the above-mentioned areas and those areas in which the Government of the Republic of Cyprus exercises effective control, whilst ensuring that appropriate standards of protection are maintained as set out above. 9. Regarding persons, the policy of the Government of the Republic of Cyprus currently allows the crossing of the line by all citizens of the Republic, EU citizens and third country nationals who are legally residing in the northern part of Cyprus, and by all EU citizens and third country nationals who entered the island through the Government Controlled Areas. (7) While taking into account the legitimate concerns of the Government of the Republic of Cyprus, it is necessary to enable EU citizens to exercise their rights of free movement within the EU and set the minimum rules for carrying out checks on persons at the line and to ensure the effective surveillance of it, in order to combat the illegal immigration of third country nationals as well as any threat to public security and public policy. It is also necessary to define the conditions under which third country nationals are allowed to cross the line. Regarding checks on persons, this Regulation should not affect the provisions laid down in Protocol No. 3, and in particular Article 8 thereof. This Regulation does not affect in any way the mandate of the United Nations in the buffer zone. 643

Part II: Cyprus–Europe Relations (1983–2006) Since any change in the policy of the Government of the Republic of Cyprus with regard to the line may pose problems of compatibility with the rules established by this Regulation, such changes should be notified to the Commission, prior to their entry into force, in order to allow it to take the appropriate initiatives so as to avoid inconsistencies. The Commission should also be allowed to amend Annexes I, and II to this Regulation with a view to responding to changes which may occur and require immediate action. HAS ADOPTED THIS REGULATION: Title I: General Provisions Article 1: Definitions For the purpose of this Regulation the following definitions shall apply: 1. the term ‘line’ means: (a) for the purpose of checks on persons, as defined in Article 2, the line between the areas under the effective control of the Government of the Republic of Cyprus and those areas in which the Government of the Republic of Cyprus does not exercise effective control; (b) for the purpose of checks on goods, as defined in Article 4, the line between the areas in which the Government of the Republic of Cyprus does not exercise effective control and both those areas in which the Government of the Republic of Cyprus exercises effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Northern Ireland; 2. the term ‘third country national’ means any person who is not a citizen of the Union within the meaning of Article 17 (1) of the EC Treaty. References in this Regulation to areas in which the Government of the Republic of Cyprus does not exercise effective control are to areas within the Republic of Cyprus only. Title II: Crossing of Persons Article 2: Check on Persons 1. The Republic of Cyprus shall carry out checks on all persons crossing the line with the aim to combat illegal immigration of third country nationals and to detect and prevent any threat to public security and public policy. Such checks shall also be carried out on vehicles and objects in the possession of persons crossing the line. 2. All persons shall undergo at least one such check in order to establish their identity. 644

The Accession Process 3. Third country nationals shall only be allowed to cross the line provided they: (a) possess either a residence permit issued by the Republic of Cyprus or a valid travel document and, if required, a valid visa for the Republic of Cyprus, and (b) do not represent a threat to public policy or public security. 4. The line shall be crossed only at crossing points authorised by the competent authorities of the Republic of Cyprus. A list of these crossing points is laid down in Annex I. 5. Checks on persons at the boundary between the Eastern Sovereign Base Area and the areas not under effective control of the Government of the Republic of Cyprus shall be carried out in accordance with Article 5(2) of Protocol No. 3 of the Act of Accession. Article 3: Surveillance of the Line Effective surveillance shall be carried out by the Republic of Cyprus all along the line, in such a way as to discourage people from circumventing checks at the crossing points referred to in Article 2 (4). Title III: Crossing of Goods Article 4: Treatment of goods arriving from the areas not under the effective control of the Government of the Republic of Cyprus 1. Without prejudice to Article 6, goods may be introduced in the areas under the effective control of the Government of the Republic of Cyprus, on condition that they are wholly obtained in the areas not under effective control of the Government of the Republic of Cyprus or have undergone their last, substantial, economically justified processing or working in an undertaking equipped for that purpose in the areas not under the effective control of the Government of the Republic of Cyprus within the meaning of Articles 23 and 24 of Council Regulation (EEC) No. 2913/92. 2. These goods shall not be subject to customs duties or charges having equivalent effect, nor to a customs declaration, provided that they are not eligible for export refunds or intervention measures. In order to ensure effective controls, the quantities crossing the line shall be registered. 3. The goods shall cross the line only at the crossing points listed in Annex I and the crossing points of Pergamos and Strovilia under the authority of the Eastern Sovereign Base Area. 4. The goods shall be subject to the requirements and undergo the checks as required by EC legislation as set out in Annex II. 5. Goods shall be accompanied by a document issued by the Turkish Cypriot Chamber of Commerce, duly authorised for that purpose by the Commission in agreement with the Government of the Republic of 645

Part II: Cyprus–Europe Relations (1983–2006)

6.

7.

8. 9. 10.

11.

12.

Cyprus, or by another body so authorised in agreement with the latter. The Turkish Cypriot Chamber of Commerce or other duly authorised body will maintain records of all such documents issued to enable the Commission to monitor the type and volume of goods crossing the line as well as their compliance with the provisions of this Article. After the goods have crossed the line into the areas under the effective control of the Government of the Republic of Cyprus, the competent authorities of the Republic of Cyprus shall check the authenticity of the document referred to in paragraph 5 and whether it corresponds with the consignment. The Republic of Cyprus shall treat the goods referred to in paragraph 1 as not being imported within the meaning of Article 7 (1) of Council Direc53 54 tive 77/388/EEC and Article 5 of Council Directive 92/12/EEC, provided the goods are destined for consumption in the Republic of Cyprus. Paragraph 6 shall not have any effect on the European Communities’ own resources accruing from VAT. The movement of live animals and animal products across the line shall be prohibited. The authorities of the Eastern Sovereign Base Area may maintain the traditional supply of the Turkish Cypriot population of the village of Pyla with goods coming from the areas which are not under the effective control of the Government of Cyprus. They shall strictly supervise the quantities and nature of the goods in view of their destination. Goods complying with the conditions set out in paragraphs 1 to 9 shall have the status of Community goods, within the meaning of Article 4 (7) of Regulation (EEC) No. 2913/92. This Article shall apply immediately as from 1 May 2004 to goods wholly obtained in the areas not under the effective control of the Government of the Republic of Cyprus and complying with Annex II. In respect of other goods, the full implementation of this Article shall be subject to specific rules that take full account of the particular situation in the island of Cyprus on the basis of a Commission decision to be adopted as soon as possible and at the latest within 2 months of the adoption of this Regulation. For such purpose, the Commission shall be assisted by a Com55 mittee and Articles 3 and 7 of Council Decision 1999/468/EC shall apply.

Article 5: Goods sent to the areas not under the effective control of the Government of the Republic of Cyprus 1. Goods which are allowed to cross the line shall not be subject to export formalities. However, the necessary equivalent documentation shall be provided, in full respect of Cypriot internal legislation, by the authorities of the Republic of Cyprus upon request. 2. No export refund shall be paid for agricultural and processed agricultural goods when crossing the line. 646

The Accession Process 3. The supply of goods shall not be exempt under Article 15 (1) and (2) of Directive 77/388/EEC. 4. The movement of goods, the removal or export of which from the customs territory of the Community is prohibited or subject to authorization, restrictions, duties or other charges on export by Community law, shall be prohibited. Article 6: Facilities for persons crossing the line 56 Council Directive 69/169/EEC shall not apply, but goods contained in the personal luggage of persons crossing the line, including a maximum of 20 cigarettes and ¼ litre of spirits, shall be exempt from turnover tax and excise duty provided they have no commercial character and their total value does not exceed €30 per person. Exemptions from turnover tax and excise duty on tobacco products and alcoholic beverages shall not be granted to persons crossing the line under 17 years of age. Title IV: Services Article 7: Taxation To the extent that services are supplied across the line to and from persons established or having their permanent address or usual residence in the areas of the Republic of Cyprus which are not under the effective control of the Government of the Republic of Cyprus, these services shall for VAT purposes be deemed to have been supplied or received by persons established or having their permanent address or usual residence in the areas of the Republic of Cyprus under the effective control of the Government of the Republic of Cyprus. Title V: Final Provisions Article 8: Implementation The authorities of the Republic of Cyprus and the authorities of the Eastern Sovereign Base Area in Cyprus shall take all appropriate measures in order to ensure full compliance with the provisions of this Regulation and to prevent any circumvention of them. Article 9: Adaptation of Annexes The Commission may, in agreement with the Government of Cyprus amend the Annexes to this Regulation. Prior to amending the Annexes, the Commission shall consult the Turkish Cypriot Chamber of Commerce or other body duly authorized by the Government of the Republic of Cyprus as referred to in Article 4 (5), as well as the United Kingdom if the Sovereign Base Areas are affected. When amending Annex II the Commission shall follow the appropriate procedure referred to in the relevant Community legislation relating to the matter being amended. 647

Part II: Cyprus–Europe Relations (1983–2006) Article 10: Change of Policy Any change in the policy of the Government of the Republic of Cyprus on crossings of persons or goods shall only become effective after the proposed changes have been notified to the Commission and the Commission has not objected to these changes within one month. If appropriate, and after consultation with the United Kingdom if the Sovereign Base Areas are affected, the Commission may propose modifications to this Regulation in order to secure compatibility of national and EU rules applicable to the line. Article 11: Review and monitoring of the Regulation 1. Without prejudice to Article 4 (12), the Commission shall report to the Council on an annual basis, starting not later than one year after the date of entry into force of this Regulation, on the implementation of the Regulation and the situation resulting from its application, attaching to this report suitable proposals for amendments if necessary. 2. The Commission shall examine in particular the application of Article 4 of this Regulation and the patterns of trade between the areas under the effective control of the Government of the Republic of Cyprus and the areas not under its effective control, including the volume and value of trade and products traded. 3. Any member state may request the Council to invite the Commission to examine and report back to it within a specified time frame on any matter of concern arising from the application of this Regulation. 4. In the event of an emergency creating a threat or risk to public or animal and plant health, the appropriate procedures as set out in EU legislation in Annex II shall apply. In the event of other emergencies or where other irregularities or exceptional circumstances arise which require immediate action, the Commission may in consultation with the Government of the Republic of Cyprus apply forthwith such measures as are strictly necessary to remedy the situation. The measures taken shall be referred to the Council within 10 working days. The Council may, acting by qualified majority vote, amend, modify or annul the measures taken by the Commission within 21 working days from the date of receipt of notification from the Commission. Any Member State may invite the Commission to provide details of the volume, value and products crossing the line to the appropriate standing or management committee, provided it gives one month’s notice of its request. Article 12: Entry into Force This Regulation shall enter into force on the day of accession of Cyprus to the European Union. 648

The Accession Process This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, […] For the Council The President […]

66. Turkey’s accession process to the EU following the start of negotiations on 3 October 2006 and its obligations concerning Cyprus Article 6 of the negotiation framework approved on 3 October 2005 begins with the following statement: ‘The advancement of the negotiations will be guided by Turkey’s progress in preparing for accession, within a framework of economic and social convergence and with reference to the Commission’s reports in paragraph 2. This progress will be measured in particular against the following requirements:’ Amongst many other things, the aforementioned article incorporates the paragraph below: ‘Turkey’s continued support for efforts to achieve a comprehensive settlement of the Cyprus problem within the UN framework and in line with the principles on which the Union is founded, including steps to contribute to a favourable climate for a comprehensive settlement, and progress in the normalisation of bilateral relations between Turkey and all EU Member States, including the Republic of Cyprus.’ Editor’s note: In the short term, the obligation to ‘normalize bilateral relations between Turkey and all EU Member States, including the Republic of Cyprus’ may result in Turkey’s entering into full customs union with south Cyprus and opening its ports to (Greek) Cypriot ships and aircraft. In the long run, this may be followed by demands to re-establish full diplomatic relations with the Republic of Cyprus and the gradual withdrawal of troops from the north.

649

NOTES ___________

1. 2.

3. 4.

5.

6.

7.

8. 9.

Narrative adapted from: http://countrystudies.us/cyprus/11.htm Johnson Library, National Security File, Head of State Correspondence, Turkey, Prime Minister Inonu. Secret; Flash; Exdis. Drafted and approved by Rusk and cleared by Bundy for the White House. Repeated to London, Nicosia, Athens and Paris, also for USRO. For text of the agreement on economic and technical cooperation, signed in Ankara on 12 July 1947, and entered into force the same day, see 61 Stat. 2953. At the time of writing, Rauf Denktash was the second most senior Turkish Cypriot politician after Dr Fazil Kutchuk who still used the title of Vice-President of the Republic of Cyprus. Glafkos Clerides, Denktash’s longtime friend, was the speaker of the Cypriot House of Representatives. Politically, it appeared that he would be the person eventually to replace the Greek Cypriot President Archbishop Makarios III. The first round of peace talks began in Beirut in 1968. These letters shows that by 1971, both parties had managed to reach a common position on many issues. Adapted from Necati Münir Ertekün, The Status of the Two Peoples in Cyprus: Legal Opinions’ (Information Office of the Ministry of Foreign Affairs and Defence, TRNC) (2nd edn, 1998). Results of the 24 April 2004 referendum. North Cyprus: Number of voters eligible to vote 143,639; number of voters who actually voted 121,162; number of valid votes 119,618; turnout rate 84.35 per cent; yes votes 77,702 (64.9 per cent); no votes 41,916 (35.1 per cent). PLAN APPROVED. South Cyprus: Number of voters eligible to vote 480,564; number of voters who actually voted 428,587; number of valid votes 413,680 (96.52 per cent); yes votes: 99,976 (24.17 per cent); no votes 313,704 (75.83 per cent). PLAN REJECTED. OVERALL RESULT: PLAN REJECTED. There are, in fact, two maps attached to the Constitution. The first map depicts the territory of the United Cyprus Republic and the territorial boundaries of the constituent states upon entry into force of the Foundation Agreement. The second map depicts the territory of the United Cyprus Republic and the territorial boundaries of the constituent states upon entry into force of the Additional Protocol to the Treaty of Establishment. The term Cyprus here is to be understood in the sense of the island of Cyprus excluding the Sovereign Base Areas. The criterion of inconsistency with or repugnance to international law refers to any act that by its nature is contrary to international law. This reference, like the whole article, is without prejudice to the question of the legitimacy or status of the relevant authorities under international law.

651

Notes 10. Matters of citizenship, immigration, and properties affected by events since 1963 are dealt with in a comprehensive way by this agreement; any validity of acts prior to entry into force of this agreement regarding these matters shall thus end unless they are in conformity with the relevant provisions of this agreement. 11. This Constitution gives the Supreme Court power to determine the validity of any law. 12. This does not prevent the flying of national flags on the occasion of official visits by foreign dignatories. 13. Defence policy must be formulated and exercised in accordance with agreed security arrangements, and the international obligations of Cyprus. 14. This power authorises the federal government to take necessary measures for the participation of Cyprus in the Economic and Monetary Union, the Common European Security and Defence (non-military matters) Policy and the ‘enhanced cooperation’ within the meaning of the Treaty on the European Union. 15. Fisheries and agriculture are within the competences of the constituent states. 16. In conformity with the principle of eiusdem generis, this covers all matters related to aviation, including the airspace of the United Cyprus Republic and the Flight Information Region (FIR). 17. In conformity with the principle of eiusdem generis, this includes all matters regulated by the 1982 United Nations Convention on the Law of the Sea. 18. This proviso is to be understood as crimes against a constituent state’s law where (all) perpetrator(s) and victim(s) hail from that constituent state. 19. These include security, law and order and the administration of justice within their territorial boundaries. 20. This is without prejudice to the right of hot pursuit as agreed in the Cooperation Agreement on Police Matters. 21. Commercial matters include economic investment and financial assistance. 22. Cultural matters include the arts, education and sports. 23. See note 19 above. 24. See note 20 above. 25. Penalties, fines or damages imposed on the United Cyprus Republic by European Union institutions shall be borne by the responsible federal or constituent state authority. 26. This is without prejudice to the entry into force upon signature of the Treaty between Cyprus, Greece, Turkey and the United Kingdom on Matters related to the New State of Affairs in Cyprus as provided for in Annex IX of the Foundation Agreement, by the Co-Presidents in accordance with Article 55 of this Constitution. 27. This is without prejudice to the special rules defined in Article 19 (7) regarding ratification of European Union acts that require unanimity of European Union member states. 28. This includes the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols in force for Cyprus. 29. Since the Foundation Agreement provides for the membership of Cyprus in the European Union, the term ‘Foundation Agreement’ in this Article includes obligations arising out of membership in the European Union. 30. The reference to ‘international law’ in this Article includes the 1969 Vienna Convention on the Law of Treaties. 31. The purpose of this provision is to ensure that entry into force of the Foundation Agreement does not prevent there being two (or more) distributorships in Cyprus (for example, one per constituent state) until European Union regulations liberalising distributorships enter into force.

652

Notes 32. The services of the International Organisation for Migration could be requested in this regard. 33. Expert advice shall be sought from quantity surveyors, economists and/or specialists in property valuation on the final formulation of provisions relating to assessment of value. 34. The value at the time of dispossession and the calculation of the increase should be based on the hypothesis that events between 1963 and 1974 had not taken place. In other words, they should not take into account alteration in values due to those events; it should if possible therefore be based on comparable locations where property prices were not positively or negatively affected by those events. 35. This definition is not intended to include private family corporations or companies, meaning any corporate or unincorporated association of persons, shareholders or members of which are spouses and their respective relatives, up to and including the third degree or generally persons related between themselves up to and including the third degree (as such degree of relation is defined by the 1960 Cyprus law), as well as their successors, testate or intestate, if they by virtue of succession become shareholders or otherwise members of such entities which continue as going concerns or are of continued good standing. 36. Provisions defining market rent and value shall be reviewed by relevant experts in valuation. 37. See note 34 above. 38. In the case of Apostolos Andreas monastery and the Hala Sultan Tekke, the maximum adjacent area to be considered part of each religious site shall be 165 donums (namely the area included within the donkey fence surrounding the complex of buildings of the monastery) and 45 donums (namely the area including the mosque, mausoleum, the garden area between the road and the lake, as well as the adjacent Islamic cemetery) respectively. 39. The Property Board shall have discretion in deciding cases of improvements that were at an advanced stage as at that date and completed thereafter. 40. The Property Board shall not have to pay for such land. 41. Expert banking advice is needed on the question of the issuing, value and use of compensation bonds. 42. It is understood that a dispossessed owner of an affected property in an area subject to territorial adjustment whose property can be reinstated shall not have the option of claiming compensation. 43. The use of the significant improvement for income generation shall be an important consideration in such a decision. 44. This requirement to inform the United Nations does not imply a hierarchy since it is a commitment of Greece and Turkey to each other, in the interest of transparency, contained in a treaty to which the United Nations is not a party. 45. The United Nations operation would not assume direct responsibility for the enforcement of law and order. 46. See Kevin Ryan, The Oram case: enforcing the judgement in the United Kingdom, Adapted from http://www.gurkanandgurkan.com/library/OramsCase_II.doc 47. An updated version of this legal opinion has been circulated as a UN Document, 9 October 2001, A/56/451–S/2001/953. 48. James Crawford is Whewell Professor of International Law, University of Cambridge; Gerhard Hafner is Professor of International Law at the University of Vienna; and Alain Pellet is Professor of International Law at the University of ParisX. An updated version of this opinion has been circulated as a UN Document, 19 December 2001, A/56/723-S/2001/1222.

653

Notes 49. For a few years prior to the Copenhagen Summit, Turkey kept insisting that it might reach the point of fully annexing occupied territory in Cyprus if Cyprus joined the European Union prior to a solution to the Cyprus issue. This was on the grounds that Cypriot membership of the EU was illegal and that it was tantamount to enosis (unification) with Greece. At the Copenhagen Summit, Turkey was promised that accession negotiations would start with it by 2005, if the country’s human rights record improved. This, coupled with Turkey’s economic difficulties, led to the discontinuation of this threat. On 1 May 2004, the island joined the EU without a permanent resolution and no annexation took place. 50. OJ L 236, 23 September 2003, p. 955. 51. OJ L 236, 23 September 2003, p. 940. 52. OJ C xxx, xx.xx.2004, p. xx. 53. OJ L 145, 13 June 1977, p. 1. 54. OJ L 76, 23 March 1992, p. 1. 55. OJ L 184, 17 July 1999, p. 23. 56. OJ L 133, 4 June 1969, p. 6.

654

INDEX __________

13 points, 89 1977 Protocol, 521–2, 524, 525–31, 586, 590 28th Infantry Division, 392 39th Infantry Division, 392 Acheson, Dean, 129, 131, 132, 135, 136, 138 Achna, 313 acquis communautaire, 538–9, 543–4, 552–3, 607–8, 611, 614, 623, 625–7, 632–3, 642–3 Adacay, 294, 323 Adana, 392 Aegean Turkish Holidays Ltd, 398 Agia Trias, 294, 323; see also under Sipahi Agialousa, 294, 323; see also under Yeni Erenköy Agios Georgios, 294 Agios Georgoudi, 323 Agios Theodoros, 323 Agios Vasilios, 294 Agrotexim v. Greece, 400 Airey v. Ireland, 408 Akamas, 627, 628 Akay v. Motorola Credit Corporation, 567 Akdivar, Abdurrahman, 432, 486 Akincilar, 310, 391 Akritas Plan, 90, 101 Akrotiri, 37, 353, 539, 634, 637, 639 Alevga, 323 Allen & Overy, 520

Amadhies, 294 Anastasiou (Pissouri) Ltd, S. P., 519–20, 553, 585–6 Ankara, 100, 137 Annan, Kofi, 277, 282, 353, 628 Annan Plan, 280, 382, 501, 503, 507, 539, 548 Anschluss, 599, 600 Antwerp, 561 Anzilotti, Judge, 595 Apostolides, Mr Meletios, 538, 540–2, 552–5, 557–9, 563, 568 Apostolos Andreas monastery, 130, 415, 418, 461 Ardahan, 3 Armenia, 5; Armenians, 286, 294, 299, 444 Asha, 392, 413 Asia, 3, 277 Assia, 392 Association Agreement, 519, 521–2, 525–31, 533, 585, 590, 595, 602, 608–9, 618 Aston, A., 520 Astromeritis, 310 Atatürk, Mustafa Kemal, 201, 213, 223 Athens, 100, 134, 146, 187–8, 190–2 Athienou, 310 Australia, 22 Austria, 595, 599–600, 605–6 Austro-German Customs Union, 595 Averoff, M., 584, 596 Avlona, 315–16 Avrupa, 628

655

Index Ayios Memnon, 502 Ayios Nikolaos, 37 Bacon, Francis, 103 Baka, Judge, 516 Balfe, Mr, 617 Balkans, 277 Bangladesh, 386 Barreto, I. Cabral, 501 Batoum, 3 Bayulken, M., 597 Beazley, Mr Tom, 552–4, 556, 564–5, 567–9 Belgium, 144, 167, 277, 469 Belilos v. Switzerland, 458 Berberoglou, Mr, 105 Berger, Vincent, 501, 516 Berlin Wall, 624 Bernhardt, Judge, 516 Beyarmudu, 310 Blackstone, William, 103 Blair, Tony, 538 Board of Pious Foundations, 4 Boghaz, 130 Booth, Miss Cherie, 538, 552, 568 Bournias, Mr, 615 Boutros-Ghali, Dr Boutros, 258, 275, 374 Bouwman, Mr, 561 Briggs, Adrian, 567–9 Britain, 3, 9, 11, 83, 192; see also under Great Britain; United Kingdom Broniowski v. Poland, 510, 517, 549 Brownlie, Mr I., 514 Brussels, 571, 595, 623, 642, 649 Brussels Convention, 550, 556, 559–60, 565, 567–8 buffer zone, 247, 271–2, 276, 358, 378, 381, 406, 423, 523–5, 628, 643 Bulgaria, 612 Caflisch, L., 501 Caglar, Resat, 578 Caglar v Billingham, 536 Cairo, 137, 188 Çakici v. Turkey, 441 Calimnos, 7 Calki, 7

656

Calzaturificio Brennero v. Wendel GmbH, 567 Camaret, Mr, 617 Candounas, Mr, 557–9 Casos, 7 Castellorizzo, 7 Caucasus, 277 CBS (Columbia Broadcasting System), 24 Central Bank of Cyprus, 287, 303, 304, 338 Chrysostomos, Bishop, 398, 404, 407 Churchill, Winston S., 8, 9 Çiller, Tansu, 277 Civil Wrongs Law, 427 Claims Bureau, 318, 328, 333, 335–8, 340 Clerides, Glafcos, 139, 146–7, 149–50, 161, 176, 182, 185, 194, 275, 277, 280, 308, 622 Clough, M., 520 cold war, 129, 276 Collins, J. E., 520 Committee on Missing Persons (CMP), 271, 308, 382, 411–13, 434–5, 437, 440, 616 Common Agricultural Policy (CAP), 627 Communal Chambers, 33, 35, 41–3, 48–9, 54, 60–5, 75–6, 79, 82, 140–1, 144, 152–3, 166, 168, 173, 175, 183, 186, 575 Compensation Bureau, 318, 328–30, 333, 335, 338 Conference on Security and Cooperation in Europe (CSCE), 265, 617 Conflict Prevention Service (COPS), 614 Constantinople, 4, 5 Constitution, 9–10, 32, 36–7, 39–43, 45–6, 51–2, 54–5, 60–1, 63, 66, 68–71, 75–9, 81–2, 84, 86–7, 104–6, 141, 143–6, 149, 156–7, 159, 161–4, 168–70, 172–4, 176, 178–9, 181, 183–4, 198, 213–15, 224, 230, 232, 235–6, 239–43, 253, 256, 282, 284–96, 299–301, 304–6, 309, 346,

Index 352, 355–6, 369, 392, 399–400, 404, 429, 444, 447–9, 572–5, 580, 583, 587, 590–1, 600–1, 604; (of 1960), 89, 101–4, 109, 112, 114, 124–5, 140, 145, 151–3, 158–9, 166, 168, 171, 174, 177–81, 183–5, 193, 252, 523, 574–5, 578–82, 588–9, 592, 598, 601–4; (of TRNC), 200–3, 205, 211–12, 218, 223–5, 229–38, 398–400, 402, 410, 415, 417, 466, 488–90, 544–7 Constitutional Court, 33, 52, 76, 80–1, 102, 162–3, 206, 213–14, 219, 221, 232–6, 245–6, 306, 575, 593 Copenhagen, 606, 613, 623, 626, 642 Cordovez, Diego, 280 Corfu, 610 Cos, 7 Council of Europe, 187, 199, 347, 350, 351, 393–4, 398, 401, 410, 421, 423, 510, 548, 593, 618, 624 Council of Ministers, 32, 41, 44, 47–9, 52–4, 68, 70, 83, 109, 144, 147–50, 152, 158, 202, 214, 216, 218–21, 224–8, 231, 239–40, 245–6, 255, 288, 307–8, 416–18, 503, 574, 581, 610, 616–17 coup, 161, 186–92, 369, 539, 580, 618 Cruz Varas v. Sweden, 405 Cyprus Broadcasting Corporation (CBC), 23–4, 71 Cyprus Compensation Trust, 329–30, 333–4, 339 Cyprus Consolidated Fund, 26–7 Cyprus Fruit and Vegetable Enterprises Ltd (Cypruvex), 519–20 Cyprus Property Board, 312, 318–24, 326–8, 330–44 Cyprus Technical Institute, 24 Cyprus v. Turkey, 401, 504–10, 548, 578, 581 Czech Republic, 539, 612–13, 634–5, 642 Danzig and the Soar, 131, 135 de Castro, Judge, 431 de Cuéllar, Pérez, 243 de Michelis, Mr Gianni, 571

Debaecker, Mr and Mrs, 561, 564 Delors II package, 606 Demades v. Turkey, 504–6, 509 Demetriades, Mr A., 501 Demirel, Suleyman, 97, 526 Denktash, Rauf, 139, 146–50, 161, 175–6, 182, 185, 194–5, 248, 252, 278, 308, 413, 435, 437, 620–2, 624–5, 628 Denning, Alfred Thompson, 535–6 Dhekelia, 37, 353–4, 539, 634, 638–9 Dherinia, 310 Dhimokratias Street, 273 Diez de Velasco, M., 520 Dillard, Judge, 431 Dimitriades, Mr, 617 Dipkarpaz, 294, 323 Dodecanese, 134 Doğan and Others v. Turkey, 517 Dublin, 609, 611 Due, O., 520 East African Asians, 475 Eastern Sovereign Base Area, 544, 632, 643–7 Ecevit, Bülent, 187 Eden, Sir Anthony, 11 Edinburgh, 606 Edward, D. A. O., 520 Efrem, Judge, 541, 542 Eilat, 94 Elizabeth II, Queen, 3, 12, 14, 519 Elles, Lady, 617 Emin v. Yeldag, 536 EMS (European Monetary System) Economic Management Ltd, 514–15 England, 398, 537–8, 540, 554–5, 558, 564 English School, 24 enosis, 10, 12, 92, 94–5, 115–18, 121, 136–7, 142, 145, 163, 165, 191, 577, 582–3, 591–2, 596–7 EOKA, 10, 11; EOKA B, 187–8, 190–1 Episkopi, 37 Erenköy, 294, 323 Ergi v. Turkey, 436 Ermacora, Dr F., 600 Essen, 610

657

Index Estonia, 539, 612–13, 635, 642 ethnic cleansing, 452, 477, 494 Euratom Treaty, 605 European Agriculture Guidance and Guarantee Fund (EAGGF), 642 European Atomic Energy Community (EAEC), 605 European Coal and Steel Community (ECSC) Treaty, 605 European Commission (EC), 282, 539, 578, 581, 589–91, 593, 597–600, 602, 609, 627, 634–6, 638, 641, 644–5 European Convention for the Protection of Human Rights and Fundamental Freedoms, 252, 294, 319, 345, 350–1 European Convention on Human Rights (ECHR), 132, 180, 436, 441, 501, 504, 510, 541, 543, 548, 615, 627 European Council, 539, 605–6, 609–14, 621, 624–5, 631, 642 European Court of Human Rights, 319, 345, 394, 500–1, 541, 544, 548–9, 554–5, 590, 624, 626 European Court of Justice, 519, 538, 585, 590, 594, 602 European Economic Area (EEA) Agreement, 605 European Economic Community (EEC), 257–8, 269, 519, 521–2, 524, 533, 553, 571, 585, 591, 594, 595, 600, 604–5, 618–19, 634–5, 638–40 European Food Safety Authority (EFSA), 626 European Free Trade Association (EFTA) countries, 605–6 European Parliament, 288, 362–3, 582, 585, 612, 615–17, 619, 621–2, 628, 637 European Security and Defence Policy, 363 European Union (EU), 249, 278–89, 293–5, 297–9, 302–4, 306, 308, 346–8, 351, 356, 360–4, 538–40, 542–4, 552–4, 571–2, 582–91, 593–5, 597–604, 606, 609–14, 621–6, 628, 631–5, 642–3, 648–9

658

Evkaf, 4, 210, 229, 318, 327 Eyre, Master, 542 Famagusta, 10, 16, 38, 84, 122, 309–10, 315–16, 358, 392, 414, 502, 505–6, 511–12, 548, 619 Feissel, Mr, 276 Fevzi, Mr, 558 Findlay v. the United Kingdom, 483 Finland, 605–6 Florence, 621, 623 Food and Agriculture Organization (FAO), 597 Foreign and Commonwealth Office, 578 Foreign Office, 576, 584 Foundation Agreement, 280–3, 287–8, 291, 295, 297, 305–9, 311, 318–20, 323–6, 328–9, 332–3, 336, 338–9, 342–8, 350–1, 355–61, 363–5, 503 France, 98, 104, 563–4, 580 Free Trade Area, 584, 596–7 French Constitution, 593 Galini, 310, 314 Garoufalias, Mr, 137 Gemikonagi, 294 General Affairs Council, 610 General Agreement on Tariffs and Trade (GATT), 589, 597, 603 Geneva, 135–6, 192–3, 199, 278 Georgia, 277 Germany, 98, 104, 131, 405, 559, 563, 565–6, 580, 593, 595, 599–600 Gerolakkos, 316, 317 Gibraltar, 553 Gizikis, General Phaedon, 188 Gölcüklü, Judge, 516 Golder v. United Kingdom, 401 Göteborg, 623 Governing Council, 328–30, 333–4 Great Britain, 3–5, 28, 31, 36–7, 83, 87, 137, 194, 199; see also under Britain; United Kingdom Greece, 9–12, 28, 31, 33, 36–41, 50, 74, 78–9, 83, 86–7, 92, 94, 97, 104, 106–8, 111, 113–18, 122, 129–30, 132–8, 163, 171, 186–8, 190–4, 198,

Index 260, 268, 271, 275–81, 283–4, 289, 290, 297, 307–8, 311, 324, 328, 346–7, 351–3, 355–8, 360–1, 365, 368–70, 375, 379, 400, 539, 572–4, 578, 581–91, 594, 596–8, 601, 603, 611, 618 Greek Orthodox Church, 41, 66 Greek Orthodox Youth, 188 Grévisse, F., 520 Grivas, George, 10–12 Guerra and Others v. Italy, 482 Gulmann, C., 520 Günebakan, 294 Gustafsson v. Sweden, 400 Gypsy/Gypsies, 411, 419–20, 480–3, 487–8, 493, 499 Gyulumyan, Mrs A., 501 Hague, The, 98, 131, 383, 566, 618 Harcourt, Lewis, 6 Harding, John, 11 Hare, Ambassador, 98, 100 Hedigan, J., 501 Helsinki, 612–13, 623–5 Hendrikman v. Magenta Druk & Verlag Gmbh, 566–8 Hendrikman, Mr and Mrs, 566 Hesperides Hotels Ltd and Another v. Aegean Turkish Holidays Ltd, 398 Hesperides Hotels v. Muftizade, 541 Hetsch, P., 520 Hewlett, L., 520 High Court, 35, 41, 43, 59, 67, 69, 72, 75, 78–83, 102, 145, 158, 166, 179, 519, 521, 523, 533, 539, 542, 565, 567, 585 Hitler, Adolf, 131 Holbrooke, Richard, 277 Horafas, Angelas, 147 House of Commons, 198–9, 578–9 House of Representatives, 29, 32–3, 41, 45, 47–59, 61–2, 69, 71–2, 74–7, 83, 89, 105–6, 149, 152–3, 156, 158–9, 161–2, 177–8, 180, 185–6, 574–5, 584, 600–1 Hove, 540, 542 Hungary, 539, 612, 613, 635, 642

Huygen and Others, 526, 528 Iacovou, George, 571 Immobiliare Saffi v. Italy, 555 Immovable Property Commission, 549 Incal v. Turkey, 488, 489 Income and Corporation Taxes Act (1988), 536 India, 3 Inland Revenue, 578 Inönü, Ismet, 97 International Civil Aviation Organization (ICAO), 274 International Committee of the Red Cross, 193, 616, 620–1 International Court of Justice, 131, 402, 428–31, 457, 528, 530, 545, 612 International Telecommunications Union, 593 Ireland, 401, 482, 489, 564 Iskenderun, 129 Isle of Man, 639 Israel, 93 Istanbul, 10 Italy, 7, 104, 580 izmir, 10 Jack, Justice, 538 Jambrek, Judge, 516 Janney, D., 520 Jenard Report, 559 Jersey Produce Marketing Organisation Ltd, 552 Johnson, Lyndon, 97, 132 Johnston and others v. Ireland, 401 Joint Investigation Agency, 289, 293, 296 Joliet, R., 520 Jordan, 372 Kaimakli, 310 Kakouris, C. N., 520 KappAhl Oy, 553 Kapteyn, P. J. G., 520 Karavostasi, 310 Karpas, 130, 132, 135, 294, 323, 414–16, 418, 427, 446, 452–4, 456,

659

Index 457, 461, 463–4, 467, 471, 473–4, 476–7, 484, 490, 496, 498, 628 Karpas Brief, 416, 417, 452, 475, 476 Kars, 3, 5 Kato Pyrgos, 310 Kaya v. Turkey, 436 Khalkias, I., 520 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 469 Klaas v. Germany, 405 Klomps v. Michel, 559, 562, 563, 565, 567 Knox Helm, Sir, 596, 597 Kokkina, 294, 313, 323 Komi Kebir, 132, 135 Kondolaimos, V., 520 Kontea, 315–16 Kormakiti, 294, 414, 416 Krini, 392 Krombach v. Bamberski, 563 Küçük, Dr Fazýl, 576 Küçük, Yalçin, 413, 436, 437 Kuijper, P. J., 520 Kurt v. Turkey, 439 Kurutepe Karavostasi, 294 Kutchuk, Dr Fazil, 39, 89, 601 Kyprianou, Spyros, 137, 252, 394 Kyrenia, 11, 16, 130, 133, 391–2, 408, 540–1 Labouisse, Ambassador, 136, 137 Laeken, 612 Lapithos, 540–1, 555, 557 Larnaca, 10, 16, 24, 84 Latins, 286, 294, 299, 444 Latvia, 539, 612–13, 635, 642 Lausanne, 7, 131–3 Lauterpacht, Prof. Elihu, 196, 200 Lavroff, Professor, 594 Layard, Austen Henry, 3, 4 LCB v. the United Kingdom, 455 Lebanon, 144, 158, 159 Ledra, 272, 310 Ledra Palace checkpoint, 416, 463, 471, 473 Ledra Palace Hotel, 272 Lefka/Lefke, 310, 392, 628 Lefkoniko, 392

660

Lefkosa, 201 Lehideux, Mrs, 617 Lennox-Boyd, Alan, 198 Lernhardt, Dr, 600 Leros, 7 Les Rapides Savoyards, 526, 528 Liatsos, Mr, 558 Limassol, 10, 16, 84, 354, 623 Limnitis, 294, 316 Limpia, 310 Lipsos, 7 Lisbon, 605–6 Listowel, Earl of, 10 Lithgow and Others v. the United Kingdom, 458–9 Lithuania, 539, 612–13, 635, 642 Loizidou, Mrs Titina, 395, 397–8, 401–3, 405, 407, 410, 421–6, 429, 447–8, 504–8, 512, 516, 541, 544, 546–8, 624 Lomas, Mr, 617 London, 10, 37, 187, 189, 200, 419, 538, 541, 573, 576, 578–9, 583 London Agreement, 31, 78, 86, 91, 111, 124, 148–9, 574–7, 579–80, 582–4, 591, 596 Lopes Rocha, Judge, 516 Loutros, 314 Lugano Convention, 567 Luxembourg, 279, 538, 609, 611, 623 Lymbia, 391 Lysi, 315, 316 Maastricht Treaty, 593 McCann and others v. the United Kingdom, 405, 436 McMichael v. the United Kingdom, 400 Macmillan, Harold, 12, 28, 198 Madenliköy, 294 Makarios, Archbishop, 11–12, 38, 89, 100, 117, 119, 125, 129, 137, 146–7, 149, 162, 165, 176, 186–7, 195, 252, 369–70, 539, 576, 580; his 13 points, 146–8, 176, 181 Malaysia, 386 Malta, 189, 539, 582, 605–6, 610, 612–14, 623, 635, 642

Index Mancini, G. F., 520 Mansoura, 323 Maronites, 267, 286, 294, 299, 323, 382, 414–18, 427, 444, 452–5, 461, 464, 466, 471, 497, 558 Mavros, Mr, 617 Mediterranean, 9, 107, 115, 119, 135, 277–9, 283, 351, 369, 619 Mehkéméi Shéri, 4 Mejelle, 104 Melanarga, 294, 323 Melousha, 310 Menderes, Adnan, 11 Mentes, Mr Gunes, 541, 557, 559, 564 Mersin, 129 Mesaoria, 294 Mia Milia, 316, 317 Michaelidou, Eugenia, 504, 506, 509 Middle East, 11 Minalmet GmbH v. Brandeis Ltd, 565, 567–8 Ministry of Agriculture, 521, 523 Misiros, 7 missing persons, 271, 308, 382, 411–13, 433–42, 495–6, 615–17, 620, 622, 626 Mitap and Müftüoğlu v. Turkey, 422 Moitinho de Almeida, J. C., 520 Monaco, 637, 639 Montreux, 622 Morphou, 310, 420, 487 Moscow, 137 Murray, J. L., 520 Myrtou, 392 Nadir, Asil, 398 Namibia, 402, 428–31, 457, 528, 530, 545–6 Nasser, Gamal Abdel, 137 National Front, 165 National Guard, 187–92, 275–6 National Programme for the Adoption of the Acquis (NPAA), 625 Necatigil, Dr Zaim, 501, 549 Netherlands, 277, 430, 560–1 New Delhi, 394 New York, 9, 195, 243, 249, 272, 276, 612

Newens, Mr, 617 Nice, 612, 623 Nicolareizes, Ambassador, 139 Nicosia, 10, 16, 24, 38, 78, 84, 86, 111–12, 121–2, 130, 132–4, 147, 176, 192, 194–5, 247, 272, 293, 309–10, 358, 367, 369, 378–80, 391–2, 408, 501–2, 530, 538, 540–2, 552, 554–5, 558, 564, 573, 575–6, 580–2, 585–6, 588–9, 622, 624, 638 North Atlantic Treaty, 38 North Atlantic Treaty Organisation (NATO), 11, 97–8, 100, 129, 131, 136–8, 614 Northern Ireland, 31, 37, 83, 87, 194, 281, 351, 353, 355, 370, 544, 564, 574, 583, 603, 632–4, 639, 642–4 Norway, 605, 606 Omorphita, 310 Onyeama, Judge, 431 Orams case, 537–8, 540–2, 552, 554–8, 563–5, 569 Organisation of African Unity, 593 Orta Keuy, 392 Osman, Mr, 557–8 Ozgur, Mr Ozker, 617, 620 Pakistan, 372, 374, 386 Papachrysostomou, Archimandrite Georgios, 398, 404, 407 Papamichalopoulos and Others v. Greece, 398, 400 Papandreou, George, 129, 132, 135–6, 138 Paphos, 16, 84, 189, 279, 354 Paramali, 37, 354 Paris, 618, 637 partition, 12, 36, 40, 114, 122, 138, 164, 196, 198, 259, 264, 284, 291, 321, 331, 364, 370, 375, 380–1, 528, 530, 533, 572–3, 575, 577, 582, 585, 590–2, 595–7, 599, 601, 624–6 Patmos, 7 Pedhieos River, 392 Pendy Plastic Products BV v. Pluspunkt Handelsgesellschaft mbH, 563 Pergamos, 37, 310, 645

661

Index Peristeria, 130 Perth, Lord, 583 Petra, 313–14 Petronio, Mr, 617 Pettiti, Judge, 516 Philis v. Greece, 482 phytosanitary certificates, 519, 522–5, 531–3, 586 Piscopis, 7 Poland, 539, 612–13, 635, 642 Polly Peck International PLC, 398 Poos, Jacques, 621 Pordea, Mr, 617 Postal Union, 584, 596 Potamos Tou Kambou, 310 Powell and Rayner v. the United Kingdom, 459 Presidential Council, 215–16, 286–8, 299–308, 312, 329 Presidential Guard, 188 proportional representation, 36, 86, 126, 183, 299, 364 Pruvot, Mrs, 615 Public Service Commission, 17, 25–6, 72, 90, 163 Pyla, 272, 294, 310, 646 Radcliffe, Lord, 11–12, 14, 21 Raptis, D., 520 Red Sea, 94 Rees, Peter, 567–9 refugees, 161, 242, 250, 252–3, 385–6, 388, 392, 408, 448, 508, 546, 619 Relocation Board, 311–12 Republic of Cyprus (RC), 572–5, 577, 580, 582–3, 586, 588 Ress, Georg, 501, 516 Rhodes, 7 Richards, S., 520 Rizokarpaso, 294, 323 Rodriguez Iglesias, G. C., 520 Roma, 286, 294, 299 Romania, 612 Roosevelt, Franklin D., 9 Rossides, Mr, 596, 597 Roth, P. M., 520 Roumos, M., 597 Rozakis, Professor C., 520

662

Rusk, Dean, 98, 654 Russia, 3, 5, 276–7; see also Soviet Union; Union of Soviet Socialist Republics (USSR) S-300 missile crisis, 277, 279 Safvet Pasha, 3–4 Salonika, 10 Sampson, Nikos, 190, 369 Scarpanto, 7 Schengen, 363 Schockweiler, F. A., 520 Scotland, 564 Scott, Sir William, 104 Scozzari and Giunta v. Italy, 510, 548 Seal, Mr, 617 Security Council, 107, 111–14, 125, 128, 182–3, 186–7, 189–93, 197, 199–200, 227–8, 252–3, 258, 266, 268, 270, 275–6, 282–3, 352, 364, 367–75, 377–82, 386–8, 393–4, 400, 402, 410–11, 421, 423, 428, 528, 543, 545, 578–9, 586–7, 590, 598–9, 609–13, 617, 621–2, 625, 628, 631 Seidl-Hohenveldern, Professor Ignaz, 600 Selladi tou Appi, 323 Seville, 613 Seychelles, 11 Simi, 7 Simitis, Costas, 277 Sipahi, 294, 323; see also Agia Trias Skouriotissa, 310 Skylloura, 294 Slovak Republic, 539, 612–13, 635, 642 Slovenia, 539, 612–13, 635, 642 Soli, 316 Somalia, 386 Sossides, Mr, 135–6, 139 Sotira, 354 South Africa, 402, 428, 430–1, 528, 545 Sovereign Base Areas, 527, 579, 632–7, 639–42, 647–8 Soviet Union, 99, 276; see also Russia; Union of Soviet Socialist Republics (USSR)

Index Stampalia, 7 Stašaitis v. Lithuania, 514 State Treaty, 599–600 Sterakovou, 354 Strasbourg, 410, 419, 502, 624 Strovilia, 645 Sublime Porte, 3, 4, 5 Suez, 11, 93 Sumner, Mr Justice, 537 Supreme Constitutional Court, 33, 41, 48–9, 52, 73–8, 80–1, 86, 90, 102, 145, 162, 166, 179, 575 Sussex, 540 Sweden, 400, 405, 605–6 Switzerland, 172, 174, 284, 580 Taksim, 591 Tanrıkulu v. Turkey, 436 Thomson-CSF, 277 Thrace, 137 Tillyria, 294, 323 Toulemon, Professor, 595 trade unions, 211, 235, 464 Traja, K., 501 Treaty of Accession, 538–9, 542, 552–3, 555, 613–14, 631 Treaty of Alliance, 37, 40, 92, 112, 189, 264–5, 283–4, 288–9, 293, 297, 320, 352, 356, 359, 574–6, 578, 580 Treaty of Establishment, 120, 211–12, 241, 268, 283, 289, 293, 297, 352–4, 358, 360, 539, 574, 576, 578, 634–5, 637–41 Treaty of Guarantee, 37, 39, 92–3, 97, 108, 187, 194, 198–9, 264, 265, 283–4, 288–9, 293, 297, 352, 355, 372, 392, 573–84, 586–91, 593–8, 602, 604 Treaty of Guarantee (1960), 98 Treaty of Military Alliance, 87 Triantafyllides J, 106 Tridente, Mr, 617 Troodos mountains, 188 Truman, Harry S., 129 TSN Kunstoffrecycling GMBH v. Jurgens, 557 Türk Mukavemet Teșkilatı (TMT), 101 Türkeli, 294

Turkey, 3–7, 10–12, 28, 33, 36–41, 50, 74, 78–9, 83, 86–7, 94, 97, 107–8, 111, 113, 115–16, 118, 120, 122, 124, 129, 131, 133, 135–9, 146–8, 186, 188, 191–4, 198–9, 250, 260, 268, 271, 274–5, 277–9, 281, 283–6, 288–90, 297, 307–8, 311, 324, 328, 346–7, 351–3, 355–8, 360–3, 365, 368–70, 373, 375, 379, 386, 393–9, 403–4, 406–10, 413–14, 419, 421–8, 432, 437, 444, 450, 474, 493, 495, 500–1, 503–8, 511–12, 516, 538–9, 544, 546, 548–9, 554, 572–4, 578, 581–7, 589–91, 594–8, 601, 603–6, 609, 611, 615–16, 618–26, 628–9, 649 Turkish Forces in Cyprus under the Treaty of Guarantee (TOURDYK), 392 Turkish invasion, 97, 186, 546, 590, 601, 624 Turkish Republic of Northern Cyprus (TRNC), 196–7, 199–204, 211–12, 214, 218–19, 222–4, 232, 239–42, 371–3, 386, 392–4, 396, 398–406, 408, 410, 413–21, 423–5, 427–30, 432–3, 435, 443–5, 447–50, 453–5, 457–72, 478, 480, 483–93, 495, 499–501, 503, 505, 508, 510, 513, 522–3, 528, 535, 537–41, 544–9, 552–5, 557, 564, 578, 581, 584, 586, 590, 598, 618, 651 Türmen, R., 501, 516 Tymvios, Michael, 504, 506, 509 Tymvou, 314, 315 Tyrimos, Mr, 558 Union of Soviet Socialist Republics (USSR), 599; see also Russia; Soviet Union United Kingdom, 3, 8, 25, 28, 31, 36–40, 74, 79, 83, 87, 94, 111, 113, 117, 120, 187, 192–3, 194, 198, 281–3, 290, 311, 324, 328, 346–7, 351–5, 365, 368, 370, 398, 401, 405, 420, 436, 475, 481–2, 487, 489, 519–23, 525–8, 532–3, 538–9, 544, 552, 572–4, 578–9, 583–8, 590, 595,

663

Index 596, 603, 632–7, 639–44, 647–8; see also Britain; Great Britain United Nations, 40, 93, 96, 99, 106–9, 111, 114, 119–20, 123–5, 127, 129, 131–3, 135, 138, 182, 186–7, 189, 191–2, 194–200, 243, 247–9, 251–2, 258, 265–6, 269–72, 275–9, 281–4, 288–90, 293–4, 309–11, 314–17, 329, 346–8, 351–3, 357–9, 364, 367–9, 371, 373–4, 377–80, 382, 385–8, 392–4, 400, 410–12, 415–17, 421, 423, 431, 434, 445, 453, 464–5, 475–6, 484, 490–1, 505, 519, 521, 523–5, 533, 539, 543, 581, 587, 598, 602, 607–13, 615–19, 621–2, 624–5, 628, 631, 643, 649 United Nations Charter, 113, 118 United Nations Development Programme (UNDP), 269 United Nations Educational, Scientific and Cultural Organization (UNESCO), 620–1 United Nations Peacekeeping Force in Cyprus (UNFICYP), 189, 193, 195, 247, 265–6, 271–2, 276, 280, 313, 367, 370, 372–3, 376, 378, 380–2, 386, 388, 411, 416, 418, 463, 475, 539, 602, 628 United States, 8, 12, 22, 98, 100, 129, 136–7, 144, 158, 186, 374, 413, 430, 622 Universal Declaration of Human Rights, 121, 125 Universal Postal Union, 593 University College London, 103 vakf property, 23, 66, 210, 229, 503 Van den Broek, Commissioner, 621 Varosha, 196, 247, 252, 271–2, 313, 315, 373, 376, 378–80, 414–15, 506 Vassiliades J, 103, 106 Vassiliou, George, 248

664

Vaughan, D., 520 Verheugen, Mr, 625, 628 Victoria, Queen, 5 Vienna, 612 Vienna Convention, 401, 529, 531, 577, 589, 592, 595–6, 601 Waldheim, Dr Kurt, 189 Watson, P., 520 Western European Union, 593 Weston, Sir John, 621 Williams, Professor Glanville, 103 Winster, Lord, 9, 10 Women Walk Home movement, 391, 617 Xenides-Arestis, Myra, 500–2, 541, 548–9 Xerovounos, 294 Xylophagou, 37 Yanakomidis, General, 369 Yaşa v. Turkey, 436 Yeni Erenköy, 294 Yerolakkos, 392 Yeşilyirmak, 294 Yialousa, 165 Yilmazköy, 294 Yoannidis, General, 369 Yorgitsis, General, 369 Young, Baroness, 578 Yüce Divan, 221–2, 224, 226, 232–3 Zodhia, 316, 317 Zorlu, M., 584, 596 Zuleeg, M., 520 Zurich, 12, 37–9, 78, 86, 149, 175, 567, 573, 591, 596 Zurich Agreement, 31, 78, 86–7, 91, 111, 124, 137, 148–9, 165, 183, 572, 574–6, 579–80, 582–4, 591, 596