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Final 22/09/2004 CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS SECOND SECTION CASE OF AZIZ v. CYPRUS (Application no. 69949/01) JUDGMENT STRASBOURG 22 June 2004 FINAL 22/09/2004 AZİZ v. CYPRUS JUDGMENT 1 In the case of Aziz v. Cyprus, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Mr J.-P. COSTA, President, Mr A.B. BAKA, Mr L. LOUCAIDES, Mr C. BÎRSAN, Mr K. JUNGWIERT, Mr M. UGREKHELIDZE, Mrs A. MULARONI, judges, and Mr T.L. EARLY, Deputy Section Registrar, Having deliberated in private on 8 April 2003 and 1 June 2004, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1. The case originated in an application (no. 69949/01) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Ibrahim Aziz (“the applicant”), on 25 May 2001. 2. The applicant was represented by Drakos S. & Associates, lawyers practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr S. Nikitas, Attorney-General of the Republic of Cyprus. 3. The applicant complained 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. 4. The application was allocated to the Third 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. 5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 6. On 23 April 2002 the Court decided to adjourn the examination of the applicant's complaints and declare part of the application inadmissible. 7. By a decision of 8 April 2003, the Court declared the remainder of the application admissible regarding the complaints mentioned above (see paragraph 3). 2 AZİZ v. CYPRUS JUDGMENT 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1938 and lives in Nicosia. 10. On 30 January 2001 the applicant applied to the Ministry of the Interior, requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of 27 May 2001. 11. 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 on the Greek-Cypriot electoral roll. 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 developments. 12. On 27 April 2001 the applicant lodged an application with the Supreme Court against the decision of the Ministry of the Interior. He relied on Article 3 of Protocol No. 1 and submitted that, following the dissolution of the Communal Chambers, the Cypriot government had failed to set up two electoral lists in order to protect the electoral rights of members of both communities. 13. On 23 May 2001 the Supreme Court dismissed the application on the following grounds: “... The right to vote is directly linked to 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 in 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 Republic of Cyprus. The denunciation by the applicant of the Turkish invasion and his loyalty to the law do not alter what the Constitution provides with respect to the election of the members of the legislative body. AZİZ v. CYPRUS JUDGMENT 3 Article 5 of the [Election of Members of the House of Representatives] 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 members of the Greek community in Cyprus. Nevertheless, he suggested that this reservation must be interpreted in the light of the current situation in Cyprus, which renders the compilation of an electoral list of the members of the Turkish community impossible. Given this fact, it had to be surmised that when the House of Representatives enacted Article 5 of the Law it had this situation in mind and the impossibility of compiling an electoral list of the members of the Turkish community. Hence, this justified 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 proposed by the applicant would amount to it being reworded. The fact that the legislator was apprised of all the facts relating to the situation 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 legislature 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 legislature'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 impossibility of compiling 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 was justified and gave him the right to participate as an elector in the forthcoming parliamentary election. This was justified by the fact that the applicant resided in the areas controlled by the Republic of Cyprus where he operates, having the same rights and obligations as every other citizen. ... Assessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature. The competence of the judiciary is limited, provided the matter is submitted to it or arises in a case brought before it, to determining the constitutionality of the law ... It is not for the judiciary to assess 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.” II. RELEVANT DOMESTIC LAW AND PRACTICE 14. Articles 31, 62 and 63 of the Cypriot Constitution provide as follows: Article 31 “Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.” 4 AZİZ v. CYPRUS JUDGMENT Article 62 “1. The number of representatives shall be fifty: Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek community and two-thirds of the representatives elected by the Turkish community. 2. Out of the number of representatives provided in paragraph 1 of this Article, seventy per cent shall be elected by the Greek community and thirty per cent by the Turkish community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...” Article 63 “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 1979 Election of Members of the House of
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