1. When the Convention was drafted, the idea was that the gravity would not be towards judgements of the Court, but towards Decisions of the Commission. An assessment by the Commission should be enough to persuade countries to rethink their policies and reach out to potential victims. Best case scenario: the two parties of a matter would reach a settlement before the Commission had to form an opinion about the case. That is why the Convention stressed that the Commission should place itself at the disposal of the two parties to reach a settlement. In practice, this hope of the Convention authors has only marginally been realised, due to several factors. Among others, respondent governments simply refuse to discuss the matter with the complainant. This even holds true, as this case illustrates, when claims are brought forward by other Member States of the Council of Europe. Rather remarkably, the Turkish government argues that because the Commission had not been able to place itself at the disposal of the parties to reach a settlement, it also cannot reach a verdict on the case. Such argument, obviously, is rejected by the Commission.
2. There are so many alleged violations that in a rather unique approach, the Commission decides not to assess them all, but to make a representative selection of the claims. Among the claims it does not assess are: the searches of homes and the interference with the privacy of correspondence (Article 8 ECHR): ‘One of the characteristics of the present case is the sheer number of alleged violations of the Convention. The Commission therefore had to restrict its investigation of alleged violations and has tested only a limited number of cases selected as representative.’
3. As to Article 8 ECHR, the Commission simply holds: ‘The Commission considers that the prevention of the physical possibility of the return of Greek Cypriot refugees to their homes in the north of Cyprus amounts to an infringement, imputable to Turkey, of their right to respect of their homes as guaranteed in Art, 8 (1) of the Convention. This infringement cannot be justified on any ground under para. (2) of this Article. The Commission concludes by 13 votes against one that, by the refusal to allow the return of more than 170,000 Greek Cypriot refugees to their homes in the north of Cyprus, Turkey did not act, and was continuing not to act in conformity with Art, 8 of the Convention in all these cases.’ What is interesting is that of the three steps mentioned in paragraph 2 of Articles 8-11 (1. Legal basis, 2. legitimate interest and 3. necessary in a democratic society), the Court and the Commission almost never find a violation on the basis of a Member State not having a legitimate interest for the interference with a human right. Normally, they attribute a wide margin appreciation in this respect to the Member States and if they have questions with regard to the strength of the Member State with respect to this ground, they will take that into account when judging on whether the third step (the necessity requirement) has been met. In a very small number of cases, such as this one, the Commission and the Court do find a violation on the ground that there appears to be no legitimate interest for the interference as all. It applies the same reasoning a number of times, or simply holds that an interference was not in conformity with
4. With respect to Articles 17 and 18 ECHR, the Commission simply finds that no additional questions are raised by these provisions.
5. Finally, Article 15 ECHR cannot apply, because Turkey had not formally invoked the state of emergency.