CYPRUS v. TURKEY JUDGMENT
23
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 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.
85. 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).
86. 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 above-mentioned 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.
87. 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