CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 février 2003

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mso-break-type:section-break } .sE0459D3D { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s86637692 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid }     THIRD SECTION     CASE OF DJAVIT AN v. TURKEY     (Application no. 20652/92)     JUDGMENT     STRASBOURG     20 February 2003       FINAL     09/07/2003         In the case of Djavit An v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   L. Caflisch , President ,   Mr   P. Kūris ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   K. Traja , judges ,   Mr   F. Gölcüklü , ad hoc judge , and Mr V. Berger , Section Registrar , Having deliberated in private on 30 January 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20652/92) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Ahmet Djavit An (“the applicant”), on 8   September 1992. 2.     The applicant, who had been granted legal aid, was represented by Mr   M. Shaw QC, practising in London. The Turkish Government (“the   respondent Government”) were represented by their Agent, Mr   Z.M.   Necatigil. 3.     The applicant alleged a violation of Articles 10, 11 and 13 of the Convention, on account of the refusal by the Turkish and Turkish-Cypriot authorities to allow him to cross the “green line” into southern Cyprus in order to participate in bi-communal meetings. 4.     The application was declared partly admissible by the Commission on 14 April 1998 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date. 5.     The application was allocated to the Fourth 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. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The respondent Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     The applicant and the respondent Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Cypriot Government, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 61 § 2). The parties replied to those comments (Rule 61 § 5). 7.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section. THE FACTS 8.     The applicant is a Cypriot national of Turkish origin who was born in 1950 and is a paediatrician residing in Nicosia, north of the “green line”. 9.     In addition to being a critic of the Turkish-Cypriot authorities and of the Turkish military presence in the northern part of Cyprus, which he defines as “occupation”, the applicant is the “Turkish-Cypriot coordinator” of the Movement for an Independent and Federal Cyprus, an unregistered association of Turkish and Greek Cypriots founded in 1989 in Nicosia. The movement has a Turkish-Cypriot coordinating committee in the northern part of the island and a Greek-Cypriot coordinating committee in the southern part. The purpose of the Movement is to develop close relations between the two communities. To that end, it organises bi-communal meetings of a political, cultural, medical or social character. 10.     The applicant is normally unable to obtain a permit from the Turkish and Turkish-Cypriot authorities to visit the “buffer-zone” or the southern part of the island in order to participate in various bi-communal meetings. Thus, between 8 March 1992 and 14 April 1998, the date of the Commission's admissibility decision, only 6 out of 46 requests for such permits were granted. Further, between 18 April 1998 and 16 October 1999 two more permits were refused, one of which, however, was granted later on. The requests that were turned down concerned, inter alia , a UNFICYP (United Nations Peacekeeping Force in Cyprus) Spring Fair at Nicosia International Airport in May 1992, a bi-communal medical seminar organised by the UNHCR (United Nations High Commissioner for Refugees) in June 1992, a meeting of the coordinating committee for the “Movement for an Independent and Federal Cyprus” at the Ledra Palace in October 1992 as well as two meetings for the reorganisation of this committee in April and July 1994, a seminar on cardiology organised by the UNHCR in June 1994, a general meeting of the New Cyprus Association in December 1997 and a number of receptions organised by the German embassy in Nicosia. Moreover, in May 1992 the above-mentioned authorities refused to allow Greek Cypriots to attend a meeting organised by the applicant in the northern part of the island. 11.     The applicant claimed that the Council of Ministers of the “Turkish Republic of Northern Cyprus” (the “TRNC”) had adopted a decision prohibiting him from contacting Greek Cypriots. Reference to this decision was allegedly made in a letter dated 3 February 1992 by the Health Minister of the “TRNC” to the applicant, which reads as follows: “According to the information our Ministry has received, you were informed by the Ministry of Foreign Affairs and Defence orally and this has been a decision of the government and we have nothing to add in our capacity as the Ministry.” 12.     On 7 May 1992 the applicant wrote to the Prime Minister of the “TRNC” requesting to be informed of the content of the Council of Ministers' decision referred to in the above-mentioned letter, but received no reply. 13.     On 29 May 1992 he sent a letter of protest to the Foreign Minister of Turkey, which has also remained unanswered. 14.     On 18 May 1994 the Directorate of Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence of the “TRNC” informed the applicant that “the permission requested by [his] letter of 19 April 1994 was refused for security reasons, in the public interest and because [he had] made propaganda against the State”. 15.     On 24 May 1994 the applicant wrote to the Deputy Prime Minister of the “TRNC”, asking whether the previous decision of the Council of Ministers was still in force since he was not allowed to visit the buffer-zone or cross over into Nicosia. He received no answer and on 19 July 1994 he sent a reminder, which also remained unanswered. However, the applicant claimed that, in an article published in a newspaper on 18 March 1996, the former Deputy Prime Minister (to whom he had sent the above-mentioned letters) had stated that when he had held this position he had requested an explanation by the Prime Minister as well as the President of the “TRNC” in relation to the refusal of permits, but had not received an answer. THE LAW I.     THE GOVERNMENT'S PRELIMINARY OBJECTIONS 16.     The Court observes that, in the proceedings before the Commission, the respondent Government raised several objections to the admissibility of the application. The Commission 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 failure by the applicant to comply with the six-month rule; and (3) alleged failure by the applicant to exhaust domestic remedies. 17.     The Court further observes that the Commission, in its admissibility decision of 14 April 1998, rejected the respondent Government's challenges under the first head and partly under the second head. As regards the latter, the Commission decided to declare inadmissible the part of the application which related to the period before 8 March 1992. Moreover, the Commission decided to reserve to the merits stage the issues raised under the third head. The Court therefore considers it appropriate to examine the respondent Government's argument on this point as well as the issue of jurisdiction that the respondent Government raised again in their submissions on the merits of this application, in the form of preliminary objections. A.     As to the respondent State's responsibility under the Convention in respect of the alleged violations 18.     As in the proceedings before the Commission, the respondent Government disputed Turkey's liability under the Convention for the violations alleged in the application. In their submissions to the Court, the respondent Government claimed that the acts complained of were imputable exclusively to the “TRNC”, an independent and sovereign State established by the Turkish-Cypriot community in the exercise of its right to self ‑ determination. In particular, the respondent Government submitted that the control and day-to-day administration of the designated crossing-points, such as that of the Ledra Palace, and the issuance of permits were within the exclusive jurisdiction and/or responsibility of the authorities of the “TRNC” and not of Turkey. 19.     In relation to this the respondent Government disagreed with the findings of the Court in Loizidou v. Turkey ((preliminary objections), judgment of 23 March 1995, Series A no. 310, and (merits), judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI), and in its judgment of 10 May 2001 in the inter-State case of Cyprus v. Turkey ([GC], no.   25781/94, ECHR 2001-IV). They also contended that the Commission, in its decision as to the admissibility of the present application, had not interpreted the decision in Chrysostomos and Papachrysostomou v. Turkey correctly (nos. 15299/89 and 15300/89, Commission's report of 8 June 1993, Decisions and Reports (DR) 86-A, p. 4). 20.     The applicant and the Cypriot Government disputed these submissions, relying essentially on the reasons given by the Court for rejecting similar objections raised by Turkey in Loizidou (preliminary objections and merits) and in Cyprus v. Turkey , all cited above. They asserted that Turkey was responsible under the Convention for all acts and omissions of the “TRNC” as well as its control over “the border area” and crossings. 21.     The Court refers to its dismissal of the respondent Government's preliminary objections in Loizidou ( merits ), cited above, as to Turkey's alleged lack of jurisdiction and responsibility for the acts complained of (pp.   2232-36, §§ 49-57). More precisely, the Court considered in that judgment 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 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. ... 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.” 22.     Many of the considerations in the above-mentioned case were confirmed by the Court in its judgment in Cyprus v. Turkey . The Court observes that in its latter judgment it rejected the Government's arguments that it had been mistaken in its approach to the issues raised by Loizidou , especially on the matter of Turkey's liability for alleged violations of Convention rights (see Cyprus v. Turkey , §§ 69-81) and it considered that Turkey's responsibility was not limited to property issues such as those considered in Loizidou . In particular, the Court stated the following: “77.     It is of course true that in Loizidou the Court 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 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.” 23.     Accordingly, the Court dismisses the respondent Government's aforementioned objections and concludes 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. B.     Exhaustion of domestic remedies 1.     Arguments before the Court (a)     The respondent Government 24.     The respondent Government maintained that the applicant had not attempted to exhaust the remedies available to him within the judicial and administrative system of the “TRNC”, as required by Article 35 of the Convention. In this connection they submitted that there were effective and adequate remedies within the judicial system of the “TRNC”, which were easily accessible to the applicant, offered him reasonable prospects of success and were capable of providing him with redress. Affirming the impartiality and independence of the judicial system in the “TRNC”, the respondent Government submitted the following points. (i)     The Constitution of the “TRNC” incorporated provisions for human rights drawn from the 1960 Cypriot Constitution, and also the European Convention on Human Rights, which formed part of the laws of the “TRNC”. Under the Constitution fundamental rights and liberties could only be restricted by law and only for the purposes that were provided for in law. Articles 136 to 155 of the Constitution provided for access to independent courts and for judicial review of administrative action on the grounds of illegality or error of law and excess and/or abuse of power (Article   152) as well as judicial review of legislation by way of reference to the Supreme Constitutional Court (Article 148) and institution of proceedings for annulment of legislation and subsidiary legislation (Article   147). In particular, Article 152 of the Constitution provided that the High Administrative Court had exclusive jurisdiction to adjudicate finally on a complaint that a decision, act or omission of any body, authority or person exercising any executive or administrative authority was contrary to any of the provisions of the Constitution, or of any law or subsidiary legislation thereunder, or exceeded or abused the powers vested in such body or authority or person. The applicant could have brought administrative proceedings in the High Administrative Court for annulment of the relevant decision or decisions of the Council of Ministers and/or responsible ministry and/or any authority that had allegedly prevented him from crossing over to southern Cyprus. (ii)     The courts had also adopted certain principles which included, inter alia , the rules of natural justice or procedural fairness and the principles of reasonableness, proportionality and reasoning of administrative acts. In order to take effect in relation to the person concerned, the administrative decision had to have been properly taken and served on the person concerned. Unless this had been done the purported act would have been incomplete and would not have come into operation vis-à-vis the person concerned. (iii)     It would have been very unlikely for any administrative act or decision to be characterised as an “act of State” and to be excluded from judicial review. Judicial review of an administrative act relating to matters of high policy would have been treated just like any other administrative act, subject to principles of administrative law relating to the exercise of discretionary powers granted under legal and constitutional provisions. The alleged refusals by the authorities to permit the applicant to visit southern Cyprus would not have been regarded by the courts in the “TRNC” as a political act outside their competence. Although the authorities might have been held to have had a certain amount of discretion regarding the merits of the issue involved, the court would not have declined jurisdiction if there had been a procedural defect relating, for instance, to the elaboration and service of the relevant administrative act or decision, or the lack of legal provisions allowing the authorities to take the relevant decision, particularly if such a decision were to restrict or limit the exercise of a right or liberty enshrined in the Constitution. (iv)     Under Article 76 of the “TRNC” Constitution there was a right of individual petition to the authorities of the State. Failure by the appropriate authority to reply to a petition made under the above-mentioned provision within a period of thirty days constituted an “omission” of the authorities under Article 152 of the Constitution giving the complainant the right to apply to the High Administrative Court. (v)     It was also possible to submit petitions to the Petitions Committee of the Legislative Assembly of the “TRNC” under the Petitions Law (no.   30/1976); (vi)     In addition, the applicant could have submitted a complaint to the Attorney-General of the “TRNC” about the matter. Under the Constitution the Attorney-General was an independent officer of the State, and if the applicant had complained to him, he could have taken up the matter with the competent bodies of the State. (vii)     In view of the fact that the applicant had been given permission on many occasions to visit southern Cyprus, his argument that he was not required to exhaust domestic remedies due to the existence of an “administrative practice” to refuse applications to visit southern Cyprus was unfounded. Each application was considered by the Ministry of Foreign Affairs and Defence on its own merits and, in case of refusal, it was open to the applicant to challenge such refusal on its merits and/or on procedural grounds. (viii)     In the light of the Court's judgment in Cyprus v. Turkey , the applicant's argument that “TRNC” remedies were inherently illegal as they emanated from an illegal situation was unfounded on both legal and factual grounds. 25.     Finally, the respondent Government maintained that the applicant had by-passed the judicial bodies of the “TRNC” not because of the lack of effective judicial remedies but because he was not willing to avail himself of the available remedies. In this connection, they referred to the significance of the applicant's political motivation as well as the political aspect of the present application. They alleged that the applicant was a person of extreme and provocative views that many Turkish Cypriots might have thought transcended the boundaries of criticism. They stated that his style of writing was reminiscent of similar, if not identical, expressions on the same points that were often used in the four inter-State applications by Cyprus against Turkey. In this connection, they mentioned the reference by the applicant to the International Association for the Protection of Human Rights in Nicosia on his legal-aid form, hinting at Greek-Cypriot involvement, assistance or instigation, and found it surprising that he should denigrate to such an extent the State in which he lived and/or the authorities, including the judiciary, of that State. (b)     The applicant 26.     The applicant countered the arguments of the respondent Government with submissions that included the following points. (i)     Although the Court, in its judgment in Cyprus v. Turkey , was not persuaded that the “TRNC” courts were inherently illegal under international law and thus in principle incapable of offering effective remedies, it was nevertheless true under Article 35 § 1 of the Convention that the definition and application of domestic remedies should be in accord with the rules and requirements of international law. These constituted the essential boundaries of the provision which could not be crossed. (ii)     The respondent Government had failed to discharge the burden of proof for Convention purposes (see Akdivar and Others v. Turkey , judgment of 16   September 1996, Reports 1996-IV). In particular, they had not addressed the key questions of the effectiveness of any of the claimed remedies with regard to the applicant and in the light of the situation. Their observations simply noted generally a range of provisions of the “TRNC” Constitution with no attempt to point to a remedy for the applicant. (iii)     The applicant had never been informed of, and had been entirely unable to discover, any proper legal basis for his treatment. Any effective remedy claimed by the respondent Government had to be seen in this light. The applicant had been prevented in an arbitrary and erratic fashion from carrying out his attempts to establish and further contacts with Greek Cypriots in southern Cyprus with a view to developing friendly relations. He had consistently sought to discover the reasons underlying the refusal to allow him to visit southern Cyprus. There did not appear to be any statutory basis in the law of northern Cyprus regulating contacts between north and south. Requests for permission to cross into the south were always treated arbitrarily, with no proper notice of refusal or no notice at all, and were often dealt with negatively, in that express permission to cross was not sent to the relevant crossing-point, or was refused orally, so that the decision was impossible to challenge in practice. The applicant believed that for political reasons he would not in any event have been treated fairly. He understood that oral decisions concerning him had been taken and he argued that he had not obtained anything in writing apart from veiled threats. (iv)     Article 12 of the “TRNC” Constitution expressly provided that no interpretation could be accepted which implied any right to engage in activities aimed at changing the “rights and status” of the “TRNC”. In this connection, the applicant pointed to a letter from the Directorate of Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence of the “TRNC” dated 18 May 1994 that justified the refusal of a permit requested by the applicant on the ground that he engaged in propaganda against the State as well as for reasons pertaining to security and the public interest. (v)     Entry regulations into the “TRNC” (and thus by necessary implication exit and re-entry) and the principles of implementation were based on decisions of the Council of Ministers of the “TRNC” which in the legal system of the “TRNC” were not subject to any judicial review (see Cyprus v. Turkey , cited above, Commission's report of 4 June 1999, § 109); (vi)     In view of the fact that the “TRNC” courts did not have jurisdiction over the Turkish forces manning the dividing line, no “TRNC” court decision supporting the applicant's claim would have or could have any binding effect upon the relevant Turkish forces, not least because both Turkey and the “TRNC” maintained that they were separate independent States. (vii)     In any event the arbitrary and erratic practices with regard to permission to cross over into southern Cyprus were such as to amount to an administrative practice. As affirmed and accepted by the Court in its judgment in Cyprus v. Turkey , the policy of impeding bi-communal contacts, at least from 1996, amounted to an administrative practice. Unlike the position in the inter-State case, however, the violation of the applicant's Convention rights fell within the period covered by the Commission's admissibility decision of 14 April 1998, so that he was absolved from the obligation to exhaust domestic remedies. The argument was that the practice in question amounted to arbitrarily disrupting and impeding such contacts and not that every single contact was prevented. Such a practice had been maintained throughout the period relevant to his application. (c)     The Cypriot Government 27.     The Cypriot Government made observations similar to those of the applicant, disputing the arguments of the respondent Government. In their submissions the Cypriot Government argued that remedies within the “TRNC” judicial system did not constitute effective domestic remedies requiring exhaustion for the purposes of Article 35 § 1 of the Convention. Alternatively, they submitted that the illegality of those remedies in international law amounted to a “special circumstance” absolving the applicant from the requirement of exhaustion. The Cypriot Government disagreed with the decision both of the Commission in its report of 4 June 1999 and of the majority of the Court in its judgment of 10 May 2001 in Cyprus v. Turkey that remedies available within the “TRNC” could be regarded as “domestic remedies”. They also raised the following additional points. (i)     The respondent Government had failed to specify the exact remedies available to the applicant with the requisite degree of certainty within the “TRNC” legal system, being accessible and capable of affording effective redress with reasonable prospects of success. The observations of the respondent Government could only be taken to refer to the possibility of an application for “judicial review” based on the “constitutional” rights referred to; that had not been shown to be effective in practice, or to be sufficiently certain to meet the requirements of Article 35. (ii)     In order to have been effective, any remedy for the present violations would have had to be able to prevent or forestall the violation. No such means could ever have been available since the applicant had never been given formal notification of the decision in advance enabling him to challenge the refusal, but had been notified only at the time it was implemented – by means of a refusal of permission to cross the line. In practical terms, it would have been extremely difficult, if not impossible, for the applicant, or others in the same position, to initiate any process by which an effective remedy, capable of overturning the decision, could have been granted. A challenge mounted after the event would not have been an effective remedy or established a right of passage for the future since each application to cross the Turkish cease-fire lines was separate and resulted in a separate refusal (that was not, however, communicated in advance). (iii)     In view of Article 12 of the “TRNC” Constitution, any political activity, including bi-communal activity, which was aimed at promoting the case for terminating Turkey's illegal occupation of northern Cyprus and for re ‑ establishing the rule of law and thus bringing about “changes” to the perceived “status” of the “TRNC” as an independent State was denied “constitutional” protection, negating consequently the rights to freedom of assembly, association or expression. Thus, it could not be said that a constitutional challenge by the applicant would have enjoyed reasonable prospects of success. (iv)     The evidence established a practice of restricting freedom of movement and thereby suppressing freedom of expression and association and of preventing the involvement of Turkish Cypriots in bi-communal organisations and activities taking place in the south. Thus the situation differed from that before the Court in the inter-State case. In the present case there was evidence of the practice of imposing politically motivated restrictions on freedom of movement in order to prevent Turkish-Cypriot opponents of the regime from travelling to the south in order to exercise their rights to freedom of expression and association (see US State Department Country Reports on Human Rights, 1993, 1994 and 1996; Cyprus v. Turkey , Commission's report cited above). There was direct evidence of the application of this practice to the applicant and others. Despite the scale of this practice, the respondent Government were unable to point to any example of a case where a successful challenge had been brought on comparable facts. The position was essentially the same for other Turkish Cypriots wishing to cross from the north to the south. (v)     Alternatively, even if the Court were to conclude that there was insufficient evidence to establish the existence of an administrative practice, the pattern of repeated violations was still relevant. Where, as here, there was a pattern of politically motivated restrictions on freedom of expression and association, the absence of any clear remedy, or any previous instances of such a remedy being applied for or granted, was plainly relevant to the determination of whether the respondent Government had demonstrated that the suggested remedies were available in practice and had reasonable prospects of success (see Akdivar and Others , cited above). (vi)     The courts of the “TRNC” were neither independent nor impartial when called upon to determine political disputes or disputes involving supporters or opponents of the “TRNC”. 2.     The Court's assessment 28.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article   35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others , cited above, p. 1210, §§ 65-67). 29.     It is incumbent on the respondent Government claiming non ‑ exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicant has not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others , cited above, p.   1211, § 68, and Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, p. 77, § 35). 30.     As regards the application of Article 35 § 1 to the facts of the present case, the Court firstly observes that in paragraph 102 of its judgment of 10 May 2001 in Cyprus v. Turkey it held that, for the purposes of former Article 26 (current Article 35 § 1), 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. In this connection Court considers, as it did in the above judgment, that the reliance by the applicant and the Cypriot Government on the illegality of the “TRNC” courts seems to contradict the assertion they make that Turkey is responsible for the violations alleged in northern Cyprus – an assertion which has been accepted by the Court (see paragraphs 21-23 above). In particular the Court stated the following in Cyprus v.   Turkey : “101.     ... It appears ... 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.” 31.     The Court also notes that the same contradiction arises between the alleged unlawfulness of the institutions set up by the “TRNC” and the argument of the applicant and the Cypriot Government, to be examined at a later stage (see paragraphs 70-74 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 (see Cyprus v. Turkey , cited above, § 101). 32.     As regards the possible remedies cited by the respondent Government, the Court considers that the latter's assertions cannot suffice to justify the objection they have raised at this stage of the proceedings. In their submissions to the Court the respondent Government referred to a number of constitutional provisions with emphasis, firstly, on the judicial review of administrative acts, decisions and omissions of any body, authority or person exercising administrative or executive power; secondly, on the possibility of recourse to the High Administrative Court in the event of failure by the authorities of the “TRNC” to reply to an individual petition within the time allowed; and, thirdly, on the submission of a complaint to the Attorney-General. The Court notes that the respondent Government's submissions regarding this point are very general. The respondent Government have not shown that any of the remedies cited would have afforded redress in any way whatsoever to the applicant. Moreover, the Court does not consider that a remedy before the administrative courts can be regarded as adequate and sufficient in respect of the applicant's complaints, since it is not satisfied that a determination can be made in the course of such proceedings concerning the refusal of the permits at the “green line”. The same applies to the submission of complaints to the Attorney-General of the “TRNC”. 33.     Furthermore, the submission by the respondent Government of a list of various cases brought by Turkish Cypriots before the “TRNC” courts does not affect the Court's conclusions in the above paragraphs. The Court notes in this connection that there is no similarity between the present proceedings and those cases as none of them concerned allegations of refusal by the authorities of the “TRNC” to grant permits to Turkish Cypriots to cross the “green line” into southern Cyprus. 34.     Finally, the Court also notes the decision of the Commission in Cyprus v. Turkey (Commission's report cited above, § 264) in which the Commission noted that entry regulations into the “TRNC” and the principles of implementation are based on decisions of the Council of Ministers of the “TRNC” and are not subject to any judicial review. The Commission was referring to the entry into or exit from the “TRNC” of Greek Cypriots and not to the exit from (and entry into) the “TRNC” of Turkish Cypriots, as in the instant case. The respondent Government stated that the body taking the decision as to whether a permit will be granted is the Ministry of Foreign Affairs and Defence of the “TRNC”. In that respect, it seems that a distinction exists between the two situations. The respondent Government have not clarified this point in their submissions. However, the Court considers that it is not necessary to examine the point in the present case. 35.     It reiterates that it is not for the Convention bodies to cure of their own motion any shortcomings or lack of precision in the respondent Government's arguments (see Stran Greek Refineries and Stratis Andreadis , cited above). 36.     Accordingly, the Court concludes that, in the absence of convincing explanations from the respondent Government and in the light of all the above, the application cannot be rejected for failure to exhaust domestic remedies. The Court thus dismisses the respondent Government's objection on that point. In view of this conclusion, the Court considers that it is not necessary to address the issue of administrative practice. 37.     The Court would emphasise, in accordance with its judgment in Cyprus v. Turkey , that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that remedies are ineffective in the “TRNC” or that applicants are absolved from the obligation under Article 35 § 1 to have normal recourse to the remedies that are available and functioning. It is only in circumstances such as those which have been shown to exist in the present case that it accepts that applicants may apply to the Court for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts. II.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 38.     The applicant complained that the refusals by the Turkish and Turkish-Cypriot authorities to allow him to cross the “green line” in order to participate in bi-communal meetings had prevented him from exercising his right to freedom of expression, including the freedom to hold opinions and ideas and to receive and impart information, as guaranteed by Article 10 of the Convention, which reads as follows: “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.” 39.     The Court notes that the issue of freedom of expression cannot in the present case be separated from that of freedom of assembly. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin v. France , judgment of 26 April 1991, Series A no.   202, p. 20, § 37). Thus, observing that the applicant's grievances relate mainly to alleged refusals of the “TRNC” authorities to grant him permits to cross over the “green line” and meet with Greek Cypriots, the Court considers that Article 11 of the Convention takes precedence as the lex specialis for assemblies, so that it is unnecessary to examine the issue under Article 10 separately. The Court will, however, have regard to Article 10 when examining and interpreting Article 11. III.     ALLEGED VIOLATION OF ARTICLE   11 OF THE CONVENTION 40.     The applicant complained that the refusals by the Turkish and Turkish-Cypriot authorities to allow him to cross the “green line” in order to participate in bi-communal meetings had prevented him from exercising his right to freedom of assembly and association with Greek Cypriots in breach of Article 11 of the Convention, which reads as follows: “ 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.” A.     Submissions before the Court 1.     The respondent Government 41.     The respondent Government submitted that the complaints of the applicant relate