CYPRUS v. TURKEY JUDGMENT
27
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.
98. 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.
99. 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).
100. 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.
101. 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 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