CASE OF AZIZ v. CYPRUS
Violation of P1-3;Violation of Art. 14+P1-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Jean-Paul Costa
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. 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.” 14. Articles 31, 62 and 63 of the Cypriot Constitution provide as follows: “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.” “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. ...” “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 Representatives Law (Law 72/79) provides as follows: “The right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution, that is to say citizens of the Republic who have attained the age of twenty-one and have had their ordinary residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications.” Article 146 of the Cypriot Constitution grants the Supreme Court exclusive jurisdiction to adjudicate finally on applications made to it complaining, inter alia, that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law, or is made in excess or in abuse of powers vested in such organ, authority or person.