24
CYPRUS v. TURKEY JUDGMENT
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 the
existence of such practices depended on the absence of effective remedies in
relation to the acts alleged to constitute the said practices.
88. 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.
89. 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
Convention-specific 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).
90. 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).