Download SECOND SECTION PARTIAL DECISION AS TO THE

SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69949/01
by Ibrahim AZIZ
against Cyprus, Greece, Turkey and the United Kingdom
The European Court of Human Rights (Second Section), sitting on 23 April 2002 as a
Chamber composed of
Mr J.-P. COSTA, President,
Mr L. LOUCAIDES,
Mr C. BÎRSAN,
Mr K. JUNGWIERT,
Mr V. BUTKEVYCH,
Mrs W. THOMASSEN,
Mrs A. MULARONI, judges,
and Mrs S. DOLLÉ, Section Registrar,
Having regard to the above application introduced on 25 May 2001 and registered on
5 June 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ibrahim Aziz, is a Cypriot national, who was born in 1938 and lives
in Nicosia. He is represented before the Court by Mr S. Drakos, a lawyer practising in
Nicosia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 January 2001 the applicant applied to the Minister of Interior requesting to be
registered in the electoral role in order to exercise his voting rights in the parliamentary
elections on 27 May 2001.
On 8 February 2001 the Ministry of the Interior refused to enrol the applicant. The
Ministry specified that, by virtue of Article 63 of the Constitution, members of the
Turkish Cypriot community could not be registered in the Greek Cypriot electoral role.
Furthermore, the Ministry informed the applicant that the matter was under consideration
by the Attorney General of the Republic and that he would be informed of any evolution
of the situation.
On 27 April 2001 the applicant lodged with the Supreme Court an application against
the decision of the Ministry of the Interior. He invoked Article 3 of Protocol No. 1 and
submitted that, after the dissolution of the Communal Chambers, the Cypriot Government
failed to set up two electoral lists in order to protect the electoral rights of members of
both communities.
On 23 May 2001 the Supreme Court dismissed the application by the following
reasons:
“... The right to vote is directly linked with the communal checks and balances which provide for the
compilation of separate electoral lists and for separate elections of the representatives of each
community. The ideal of democracy, one person one vote in the person’s place of residence, does not
provide any grounds for the Court to assume the power to reform the Constitution. Such competence is
not vested upon us, nor can the judicial authorities claim such power. This would be against the
principle of the separation of powers on which the Constitution is based...
Article 63 is contained in Part IV of the Constitution, which governs the matters pertaining to the
House of Representatives and provides for the compilation of separate electoral lists in which the
members of each community are included. The applicant belongs to the Turkish community and is one
of the small number of Turkish Cypriots residing in the part of the territory of Cyprus under the
control of the Cyprus Republic. The renunciation by the applicant of the Turkish invasion and his faith
in the law does not alter the outcome of the Constitution with respect to the election of the members of
the legislative body.
Article 5 of the Law makes the right to vote conditional on the provisions of Article 63 of the
Constitution. The applicant admits, as it transpires from his counsel’s address that the proviso to
which the right to vote is subject under Article 5, if construed literally, excludes the inclusion in the
electoral list of any person other than the members of the Greek community in Cyprus. Nevertheless,
he suggested that this reservation must be interpreted in the light of the realities in Cyprus, which
render the compilation of an electoral list of the members of the Turkish community impossible.
Given this fact, it has to be surmised that when the House of Representatives enacted Article 5 of the
Law it had these realities in mind and the inability to compile an electoral list of the members of the
Turkish community. Hence, this justifies the interpretation of the reservation contained in Article 5 as
referring only to those provisions of Article 63 of the Constitution which were rendered inactive.
Adopting the interpretation of Article 5 as proposed by the applicant would amount to a reshaping
of its wording. The fact that the legislator was apprised of all the facts relating to the realities in
Cyprus and chose to place the right safeguarded by Article 5 under the reservation of Article 63
supports the opposite of what the applicant is suggesting; it indicates an intention by the legislator to
subject the compilation of the electoral list to the statutory provisions of Article 63. From the wording
of Article 5 we conclude that the legislator’s intention was to place the right to vote under the
reservation of all provisions of Article 63. This conclusion refutes the allegation of the illegality of the
administrative decision under appeal.
The second ground on which the applicant’s appeal is based, is the law of necessity. The necessity
of his inclusion in the electoral list... is derived from the inability to compile an electoral list of the
members of the Turkish community. Given this state of affairs, Mr Drakos submitted that the
inclusion of the applicant in the electoral list of electors of the Greek community is justified and gives
him the right to participate as an elector in the upcoming parliamentary elections. This is justified by
the fact that the applicant stayed in the areas controlled by the Cyprus Republic where he operates,
having the same rights and obligations as every other citizen (...)
The ascertainment of the law of necessity invoked by the applicant and the establishment of
measures to deal with it ... is a duty that falls upon the legislator. The competence of the judiciary is
limited, provided the matter is submitted before or arises in a case brought before it, to ascertain the
constitutionality of the law ... It is not for the judiciary to ascertain the need to fill in gaps in the
function of the constitutional statutes nor to establish measures to tackle them, which is basically what
the applicant pursues with his application.”
B. Relevant domestic law and practice
Article 63 of the Cypriot Constitution provides as follows:
“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 5 of the Election of Members of the House of Representatives Law of 1979
(Law 72/79) provides as follows:
“The right to elect belongs to those who have the qualifications provided for under Article 63 of the
Constitution, that is to say the citizens of the republic who have attained the age of twenty-one, those
who have their ordinary residence in Cyprus for a period of six months immediately before the date
fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition
of the electoral qualifications”.
Article 146 of the Cypriot Constitution grants the Supreme Court exclusive
jurisdiction to adjudicate finally on applications made to it complaining (inter alia) that a
decision, act or omission of any organ, authority or person, exercising any executive or
administrative authority is contrary to any of the provisions of the Constitution or any
law, or is made in excess or in abuse of powers vested in such organ, authority or person.
COMPLAINTS
1. The applicant complains under Article 3 of Protocol No. 1, taken alone or in
conjunction with Article 14 of the Convention, that he was prevented from exercising his
voting rights on the grounds of national origin and/or association with a national
minority.
2. The applicant complains under Article 6 § 1 of the Convention that the judgment of
the Supreme Court was not reasoned and that the Supreme Court cannot be considered to
be a court established by law.
3. The applicant also alleges a violation of Article 13 of the Convention.
THE LAW
1. The applicant submits that the Respondent States undertook with the Treaty of
Guarantee to safeguard the independence, territorial integrity and Constitution of the
Republic. The Respondents with their actions and/or omissions have not guaranteed the
state of affairs established by the 1960 Constitution and, as a result, the applicant is being
deprived of his rights guaranteed by Article 3 of Protocol No. 1, on the ground of national
origin and/or association with a national minority. The revolutionary government of
Respondent No. 1 established in 1963-1964, while illegally replacing the Bi-Communal
Central Federal Government, is responsible for the constitutional crisis in 1963 until
today. Respondent No. 2 backed up the crisis and caused the military coup in 1974
against the Cyprus Government. Respondent No. 3 illegally invaded and still occupies
nearly 40% of Cypriot territory and supports the illegal “Turkish Republic of Northern
Cyprus”. Respondent No. 4 gave support to the revolutionary Cyprus government to
propose constitutional changes in 1963 and has done nothing ever since to uphold the
Constitution.
The Court notes that the applicant’s complaints, to the extent that are directed against
Greece, Turkey and the United Kingdom, are of a political nature and have no bearing on
the situation complained of by the applicant, namely the refusal of the Cypriot authorities
to register him in the electoral lists.
It follows that this complaint is incompatible ratione personae with the provisions of
the Convention within the meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
2. The applicant alleges a violation of Article 3 of Protocol No. 1, taken alone or in
conjunction with Article 14 of the Convention, which read as follows:
Article 3 of Protocol No. 1
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret
ballot, under conditions which will ensure the free expression of the opinion of the people in the
choice of the legislature.”
Article 14 of the Convention
“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.”
The applicant submits that, according to Cypriot law, he could exercise his voting
rights, but unfortunately the Supreme Court did not apply the law of necessity in his case,
as it has done in many other similar instances, because the applicant is a Turkish Cypriot.
The Court considers that it cannot, on the basis of the case-file, determine the
admissibility of this complaint and that it is therefore necessary, in accordance with
Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the
respondent Government.
3. The applicant alleges a violation of Article 6 § 1 of the Convention, which as far as
relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
The applicant submits that the judgment of the Supreme Court was not reasoned and
therefore cannot be considered to have been a judgment pronounced publicly. The
Supreme Court should have explained on what basis it decided to dismiss the applicant’s
claim. Furthermore, the applicant submits that the Supreme Court cannot be considered to
be a court established by law, because it was illegally established by Law 33/64, contrary
to the provisions of the Constitution.
As regards the first branch of the complaint, the Court notes that the judgment of the
Supreme Court, which was 16 pages long, was fully reasoned and answered all the
grounds of appeal raised by the applicant. The Court considers that this complaint
concerns more the outcome of the appeal before the Supreme Court and the manner in
which that court interpreted and applied the domestic law, matters with which, as such,
this Court cannot interfere.
As regards the second branch of the complaint, the Court cannot follow the applicant’s
arguments. The Court notes that the Supreme Constitutional Court of Cyprus has ceased
to function due to the anomalous situation in Cyprus and that the Supreme Court of
Cyprus took over the competence of that court by virtue of a law declared valid and
constitutional by the Supreme Court, at a time when it was composed of both Greek
Cypriot and Turkish Cypriot judges (the case of the Attorney-General of the Republic v.
Ibrahim (1964, CLR 195). The Supreme Court of Cyprus may therefore be deemed to be
a tribunal within the meaning of Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
4. The applicant alleges a violation of Article 13 of the Convention, which reads as
follows:
“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.”
The applicant submits that Article 146 of the Constitution is not an effective remedy,
as the Supreme Court has only jurisdiction to confirm a decision, to declare an act void,
find that an omission ought not to have been made or hold that whatever has been omitted
should have been performed.
Moreover, the Court notes that Article 146 of the Cypriot Constitution grants the
Supreme Court exclusive jurisdiction to adjudicate finally on applications made to it
complaining (inter alia) that a decision, act or omission of any organ, authority or person,
exercising any executive or administrative authority is contrary to any of the provisions
of the Constitution or any law, or is made in excess or in abuse of powers vested in such
organ, authority or person.
The Court observes that the alleged violation of the applicant’s rights under Article 3
of Protocol No. 1 stemmed from the state of the law in Cyprus, and that Article 13 does
not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be
challenged before a national authority on the ground of being contrary to the Convention
or to equivalent legal norms (see the James and Others v. the United Kingdom judgment
of 21 February 1986, Series A no. 98, § 84).
It follows that this complaint is manifestly ill-founded and must also be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning Article 3
of Protocol No. 1 and Article 14 of the Convention insofar as they involve the Cyprus
Government;
Declares inadmissible the remainder of the application.
S. DOLLÉ
Registrar
J.-P. COSTA
President