EUROPEAN COURT OF HUMAN RIGHTS
In the case of Loizidou v. Turkey (1),
The European Court of Human Rights, sitting, pursuant to
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr A. Spielmann,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr P. Jambrek,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 October 1995, 24 January
and 28 November 1996,
Delivers the following judgment on the merits, which was
adopted on the last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 40/1993/435/514. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the Government of the
Republic of Cyprus ("the Cypriot Government") on 9 November 1993,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention"). It
originated in an application (no. 15318/89) against the
Republic of Turkey ("the Turkish Government") lodged with the
European Commission of Human Rights ("the Commission") under Article 25
(art. 25) on 22 July 1989 by a Cypriot national, Mrs Titina Loizidou.
2. In a judgment of 23 March 1995 on various preliminary
objections raised by the Turkish Government (Series A no. 310), the
Court dismissed an objection concerning alleged abuse of process; held
that the facts alleged by the applicant were capable of falling under
Turkish "jurisdiction" within the meaning of Article 1 of the
Convention (art. 1) and that the territorial restrictions attached to
Turkey's Articles 25 and 46 (art. 25, art. 46) declarations were
invalid but that the declarations contained valid acceptances of the
competence of the Commission and Court. It also joined to the merits
the preliminary objection ratione temporis.
3. As President of the Chamber (Rule 21 para. 6), Mr R. Ryssdal,
acting through the Registrar, consulted the Agents of the Governments,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38) in relation
to the merits. Pursuant to the order made in consequence, the
Registrar received the memorials of the applicant, the
Cypriot Government and the Turkish Government on 29 June, 17 July and
18 July 1995 respectively. In a letter of 2 August the Deputy to the
Secretary to the Commission informed the Registrar that the Delegate
would present his observations at the hearing.
4. On 13 September 1995 the Commission, the applicant and the
Cypriot and Turkish Governments submitted their observations on the
question of reference in the proceedings before the Court to a
confidential report of the European Commission of Human Rights in the
case of Chrysostomos and Papachrysostomou v. Turkey which was then
pending before the Committee of Ministers of the Council of Europe, as
requested by the President in a letter of 8 September.
5. In accordance with the President's decision, the hearing on the
merits took place in public in the Human Rights Building, Strasbourg,
on 25 September 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Turkish Government
Mr B. Çaglar, Agent,
Mr T. Özkarol,
Mr E. Apakan,
Mr H. Golsong,
Mrs D. Akçay,
Mr Ö. Koray,
Mr Z. Necatigil, Counsel;
(b) for the Cypriot Government
Mr A. Markides, Attorney-General, Agent,
Mr M. Triantafyllides, Barrister-at-Law,
Mr M. Shaw, Barrister-at-Law,
Mrs T. Polychronidou, Counsel of the Republic A',
Mrs S.M. Joannides, Counsel of the Republic A', Counsel,
Mr P. Polyviou, Barrister-at-Law,
Mrs C. Palley, Consultant to the Ministry of
Foreign Affairs,
Mr N. Emiliou, Consultant to the Ministry of
Foreign Affairs, Advisers;
(c) for the Commission
Mr S. Trechsel, Delegate;
(d) for the applicant
Mr A. Demetriades, Barrister-at-Law,
Mr I. Brownlie QC,
Ms J. Loizidou, Barrister-at-Law, Counsel.
The Court heard addresses by Mr Trechsel, Mr Demetriades,
Mr Brownlie, Mr Markides, Mr Shaw, Mr Çaglar, Mrs Akçay, Mr Necatigil
and Mr Golsong, and also replies to its questions.
6. On 26 September 1995, Mr Macdonald decided, pursuant to Rule 24
para. 3 of Rules of Court A, to withdraw from the Grand Chamber. In
accordance with this Rule he informed the President who exempted him
from sitting.
7. On 27 September 1995, the President received a request from the
Turkish Government that Judge Macdonald withdraw from the Chamber. The
Court decided that no response was called for in the light of
Judge Macdonald's above-mentioned decision to withdraw.
8. On 6 October 1995, the Cypriot Government submitted various
court decisions to which reference had been made at the public hearing.
9. Following the publication by the Committee of Ministers of the
Commission's report in Chrysostomos and Papachrysostomou v. Turkey, the
President requested, by letter of 19 October 1995, the applicant and
the Government of Cyprus to submit any comments they wished to make.
On 6 November, they filed supplementary observations. On 23 November
the Turkish Government submitted a reply.
10. On 3 November 1995 the Turkish Government submitted an article
to which reference had been made at the public hearing.
AS TO THE FACTS
Particular circumstances of the case
11. The applicant, a Cypriot national, grew up in Kyrenia in
northern Cyprus. In 1972 she married and moved with her husband to
Nicosia.
12. She claims to be the owner of plots of land nos. 4609, 4610,
4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in
northern Cyprus and she alleges that prior to the Turkish occupation
of northern Cyprus on 20 July 1974, work had commenced on plot no. 5390
for the construction of flats, one of which was intended as a home for
her family. Her ownership of the properties is attested by
certificates of registration issued by the
Cypriot Lands and Surveys Department at the moment of acquisition.
She states that she has been prevented in the past, and is
still prevented, by Turkish forces from returning to Kyrenia and
"peacefully enjoying" her property.
13. On 19 March 1989 the applicant participated in a march
organised by a women's group ("Women Walk Home" movement) in the
village of Lymbia near the Turkish village of Akincilar in the occupied
area of northern Cyprus. The aim of the march was to assert the right
of Greek Cypriot refugees to return to their homes.
Leading a group of fifty marchers she advanced up a hill
towards the Church of the Holy Cross in the Turkish-occupied part of
Cyprus passing the United Nations' guard post on the way. When they
reached the churchyard they were surrounded by Turkish soldiers and
prevented from moving any further.
14. She was eventually detained by members of the
Turkish Cypriot police force and brought by ambulance to Nicosia. She
was released around midnight, having been detained for more than
ten hours.
15. In his report of 31 May 1989
(Security Council document S/20663) on the United Nations Operation in
Cyprus (for the period 1 December 1988 - 31 May 1989) the
Secretary-General of the United Nations described the demonstration of
19 March 1989 as follows (at paragraph 11):
"In March 1989, considerable tension occurred over the
well-publicized plans of a Greek Cypriot women's group to
organize a large demonstration with the announced intention of
crossing the Turkish forces cease-fire line. In this
connection it is relevant to recall that, following violent
demonstrations in the United Nations buffer-zone in
November 1988, the Government of Cyprus had given assurances
that it would in future do whatever was necessary to ensure
respect for the buffer-zone ... Accordingly, UNFICYP asked the
Government to take effective action to prevent any
demonstrators from entering the buffer-zone, bearing in mind
that such entry would lead to a situation that might be
difficult to control. The demonstration took place on
19 March 1989. An estimated 2,000 women crossed the
buffer-zone at Lymbia and some managed to cross the
Turkish forces' line. A smaller group crossed that line at
Akhna. At Lymbia, a large number of Turkish Cypriot women
arrived shortly after the Greek Cypriots and mounted a
counter demonstration, remaining however on their side of the
line. Unarmed Turkish soldiers opposed the demonstrators and,
thanks largely to the manner in which they and the
Turkish Cypriot police dealt with the situation, the
demonstration passed without serious incident. Altogether,
54 demonstrators were arrested by Turkish Cypriot police in the
two locations; they were released to UNFICYP later the same
day."
A. Turkish military presence in Northern Cyprus
16. Turkish armed forces of more than 30,000 personnel are
stationed throughout the whole of the occupied area of northern Cyprus,
which is constantly patrolled and has checkpoints on all main lines of
communication. The army's headquarters are in Kyrenia. The
28th Infantry Division is based in Asha (Assia) with its sector
covering Famagusta to the Mia Milia suburb of Nicosia and with about
14,500 personnel. The 39th Infantry Division, with about
15,500 personnel, is based at Myrtou village, and its sector ranges
from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus
under the Treaty of Guarantee) is stationed at Orta Keuy village near
Nicosia, with a sector running from Nicosia International Airport to
the Pedhieos River. A Turkish naval command and outpost are based at
Famagusta and Kyrenia respectively. Turkish airforce personnel are
based at Lefkoniko, Krini and other airfields. The Turkish airforce
is stationed on the Turkish mainland at Adana.
17. The Turkish forces and all civilians entering military areas
are subject to Turkish military courts, as stipulated so far as
concerns "TRNC citizens" by the Prohibited Military Areas Decree of
1979 (section 9) and Article 156 of the Constitution of the "TRNC".
B. Article 159 (1) (b) of the "TRNC" Constitution
18. Article 159 (1) (b) of the 7 May 1985 Constitution of the
"Turkish Republic of Northern Cyprus" (the "TRNC") provides, where
relevant, as follows:
"All immovable properties, buildings and installations which
were found abandoned on 13 February 1975 when the
Turkish Federated State of Cyprus was proclaimed or which were
considered by law as abandoned or ownerless after the
above-mentioned date, or which should have been in the
possession or control of the public even though their ownership
had not yet been determined ... and ... situated within the
boundaries of the TRNC on 15 November 1983, shall be the
property of the TRNC notwithstanding the fact that they are not
so registered in the books of the Land Registry Office; and the
Land Registry Office shall be amended accordingly."
C. The international response to the establishment of the "TRNC"
19. On 18 November 1983, in response to the proclamation of the
establishment of the "TRNC", the United Nations Security Council
adopted Resolution 541 (1983) which provides, where relevant, as
follows:
"The Security Council ...
1. Deplores the declaration of the
Turkish Cypriot authorities of the purported secession of part
of the Republic of Cyprus;
2. Considers the declaration ... as legally invalid and
calls for its withdrawal ...
6. Calls upon all States to respect the sovereignty,
independence, territorial integrity and non-alignment of the
Republic of Cyprus;
7. Calls upon all States not to recognise any Cypriot State
other than the Republic of Cyprus ..."
20. Resolution 550 (1984), adopted on 11 May 1984 in response to
the exchange of "ambassadors" between Turkey and the "TRNC" stated,
inter alia:
"The Security Council ...
1. Reaffirms its Resolution 541 (1983) and calls for its
urgent and effective implementation;
2. Condemns all secessionist actions, including the
purported exchange of ambassadors between Turkey and the
Turkish Cypriot leadership, declares them illegal and invalid
and calls for their immediate withdrawal;
3. Reiterates the call upon all States not to recognise the
purported State of the "Turkish Republic of Northern Cyprus"
set up by secessionist acts and calls upon them not to
facilitate or in any way assist the aforesaid secessionist
entity;
4. Calls upon all States to respect the sovereignty,
independence, territorial integrity, unity and non-alignment
of the Republic of Cyprus ..."
21. In November 1983, the Committee of Ministers of the
Council of Europe decided that it continued to regard the
Government of the Republic of Cyprus as the sole legitimate
Government of Cyprus and called for the respect of the sovereignty,
independence, territorial integrity and unity of the
Republic of Cyprus.
22. On 16 November 1983 the European Communities issued the
following statement:
"The ten Member States of the European Community are deeply
concerned by the declaration purporting to establish a
'Turkish Republic of Northern Cyprus' as an independent State.
They reject this declaration, which is in disregard of
successive resolutions of the United Nations. The Ten
reiterate their unconditional support for the independence,
sovereignty, territorial integrity and unity of the
Republic of Cyprus. They continue to regard the Government of
President Kyprianou as the sole legitimate Government of the
Republic of Cyprus. They call upon all interested parties not
to recognize this act, which creates a very serious situation
in the area."
23. The Commonwealth Heads of Government, meeting in New Delhi from
23 to 29 November 1983, issued a press communiqué stating, inter alia,
as follows:
"[The] Heads of Government condemned the declaration by the
Turkish Cypriot authorities issued on 15 November 1983 to
create a secessionist state in northern Cyprus, in the area
under foreign occupation. Fully endorsing
Security Council Resolution 541, they denounced the declaration
as legally invalid and reiterated the call for its
non-recognition and immediate withdrawal. They further called
upon all States not to facilitate or in any way assist the
illegal secessionist entity. They regarded this illegal act
as a challenge to the international community and demanded the
implementation of the relevant UN Resolutions on Cyprus."
D. The Turkish declaration of 22 January 1990 under Article 46 of
the Convention (art. 46)
24. On 22 January 1990, the Turkish Minister for Foreign Affairs
deposited the following declaration with the Secretary General of the
Council of Europe pursuant to Article 46 of the Convention (art. 46):
"On behalf of the Government of the Republic of Turkey and
acting in accordance with Article 46 (art. 46) of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in accordance
with Article 46 (art. 46) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, hereby
recognises as compulsory ipso facto and without special
agreement the jurisdiction of the European Court of
Human Rights in all matters concerning the interpretation and
application of the Convention which relate to the exercise of
jurisdiction within the meaning of Article 1 of the Convention
(art. 1), performed within the boundaries of the national
territory of the Republic of Turkey, and provided further that
such matters have previously been examined by the Commission
within the power conferred upon it by Turkey.
This Declaration is made on condition of reciprocity, including
reciprocity of obligations assumed under the Convention. It
is valid for a period of 3 years as from the date of its
deposit and extends to matters raised in respect of facts,
including judgments which are based on such facts which have
occurred subsequent to the date of deposit of the present
Declaration."
25. The above declaration was renewed for a period of three years
as from 22 January 1993 in substantially the same terms.
PROCEEDINGS BEFORE THE COMMISSION
26. Mrs Loizidou lodged her application (no. 15318/89) on
22 July 1989. She complained that her arrest and detention involved
violations of Articles 3, 5 and 8 of the Convention (art. 3, art. 5,
art. 8). She further complained that the refusal of access to her
property constituted a continuing violation of Article 8 of the
Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1).
27. On 4 March 1991 the Commission declared the applicant's
complaints admissible in so far as they raised issues under Articles 3,
5 and 8 (art. 3, art. 5, art. 8) in respect of her arrest and detention
and Article 8 and Article 1 of Protocol No. 1 (art. 8, P1-1) concerning
continuing violations of her right of access to property alleged to
have occurred subsequent to 29 January 1987. Her complaint under the
latter two provisions (art. 8, P1-1) of a continuing violation of her
property rights before 29 January 1987 was declared inadmissible.
In its report of 8 July 1993 (Article 31) (art. 31), it
expressed the opinion that there had been no violation of Article 3
(art. 3) (unanimously); Article 8 (art. 8) as regards the applicant's
private life (eleven votes to two); Article 5 para. 1 (art. 5-1)
(nine votes to four); Article 8 (art. 8) as regards the applicant's
home (nine votes to four) and Article 1 of Protocol No. 1 (P1-1)
(eight votes to five). The full text of the Commission's opinion and
of the three separate opinions contained in the report is reproduced
as an annex to the Loizidou v. Turkey judgment of 23 March 1995
(preliminary objections), Series A no. 310.
FINAL SUBMISSIONS TO THE COURT
28. In her memorial, the applicant requested the Court to decide
and declare:
1. that the respondent State is responsible for the
continuing violations of Article 1 of Protocol No. 1 (P1-1);
2. that the respondent State is responsible for the
continuing violations of Article 8 (art. 8);
3. that the respondent State is under a duty to provide just
satisfaction in accordance with the provisions of Article 50
of the Convention (art. 50); and
4. that the respondent State is under a duty to permit the
applicant to exercise her rights, in accordance with the
findings of violations of the Protocol and Convention, freely
in the future.
29. The Cypriot Government submitted that:
1. the Court has jurisdiction ratione temporis to deal with
the applicant's case because Turkey's declaration under
Article 46 of the Convention (art. 46) did not clearly exclude
competence in respect of violations examined by the Commission
after the Turkish declaration of 22 January 1990. Turkey is
thus liable for the continuing violations complained of by the
applicant in the period since 28 January 1987;
2. in any event Turkey is liable for those violations
continuing in the period since 22 January 1990 and which have
been examined by the Commission;
3. there is a permanent state of affairs, still continuing,
in the Turkish-occupied area, which is in violation of the
applicant's rights under Article 8 of the Convention (art. 8)
and Article 1 of Protocol No. 1 (P1-1).
30. In their memorial, the Turkish Government made the following
submissions:
1. the applicant was irreversibly deprived of her property
situated in northern Cyprus by an act of the "Government of the
Turkish Republic of Northern Cyprus", on 7 May 1985, at the
latest;
2. the act referred to under (1) above does not constitute
an act of "jurisdiction" by Turkey within the meaning of
Article 1 of the Convention (art. 1);
3. Turkey has not violated the rights of the applicant under
Article 8 of the Convention (art. 8).
AS TO THE LAW
31. The applicant and the Cypriot Government maintained that ever
since the Turkish occupation of northern Cyprus the applicant had been
denied access to her property and had, consequently, lost all control
over it. In their submission this constituted a continued and
unjustified interference with her right to the peaceful enjoyment of
property in breach of Article 1 of Protocol No. 1 (P1-1) as well as a
continuing violation of the right to respect for her home under
Article 8 of the Convention (art. 8).
The Turkish Government contested this allegation and maintained
primarily that the Court lacked jurisdiction ratione temporis to
examine it.
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
32. The Court recalls its findings in the preliminary objections
judgment in the present case that it is open to Contracting Parties
under Article 46 of the Convention (art. 46) to limit, as Turkey has
done in its declaration of 22 January 1990, the acceptance of the
jurisdiction of the Court to facts which occur subsequent to the time
of deposit and that, consequently, the Court's jurisdiction only
extends to the applicant's allegation of a continuing violation of her
property rights subsequent to 22 January 1990. It must now examine
that allegation since in the above-mentioned judgment it decided to
join the questions raised by the objection ratione temporis to the
merits (see the Loizidou v. Turkey judgment of 23 March 1995
(preliminary objections), Series A no. 310, pp. 33-34, paras. 102-05).
A. The wording of the Article 46 declaration (art. 46)
33. In their memorial on the merits, the Cypriot Government
submitted that Turkey's Article 46 (art. 46) declaration was
ambiguously worded. The absence of a comma in the final sentence after
the word "facts", where it occurs for the second time, made it unclear
whether the words "which have occurred subsequent to the date of
deposit" qualified "facts" (when first used) or "judgments"
(see paragraph 24 above). The same observation was made as regards the
Government's Article 25 (art. 25) declarations. In their submission,
all Convention enforcement organs, which have jurisdiction conferred
upon them, enjoy jurisdiction retroactively to the time of ratification
of the Convention unless there has been an express and unambiguously
worded restriction ratione temporis. However, the latter requirement,
they claimed, was not satisfied in the present case.
34. The Court sees no merit in this argument. In its view the
reading of the present text in the manner contended by the
Cypriot Government would render the last sentence of the declaration
almost unintelligible. It considers that the intention of the
Turkish Government to exclude from the Court's jurisdiction all matters
raised in respect of facts which occurred prior to the date of deposit
of the Article 46 (art. 46) declaration is sufficiently evident from
the words used in the last sentence and can be reasonably inferred from
them. Moreover, it notes that the Commission has construed in a
similar fashion identical language and punctuation in
Turkey's Article 25 (art. 25) declarations (see the decision of
admissibility in applications nos. 15299/89, 15300/89 and 15318/89
(joined), Chrysostomos, Papachrysostomou and Loizidou v. Turkey,
4 March 1991, Decisions and Reports (DR) 68, pp. 250-51, paras. 50-60).
B. Further arguments of those appearing before the Court
35. The Turkish Government, for their part, contended that the
process of the "taking" of property in northern Cyprus started in 1974
and ripened into an irreversible expropriation by virtue of
Article 159 (1) (b) of the "TRNC" Constitution of 7 May 1985
(see paragraph 18 above) justified under the international-law doctrine
of necessity. In this context they contended that the "TRNC" is a
democratic and constitutional state whose Constitution was accepted by
a referendum. Following a process of political and administrative
evolution, the "TRNC" was established by the Turkish Cypriot people in
pursuance of their right to self-determination and thus was able to
make valid law. Moreover, the effectual and autonomous nature of the
administration in the northern part of Cyprus had been recognised in
various court decisions in the United Kingdom
(Hesperides Hotels Ltd and Another v. Aegean Turkish Holidays Ltd and
Another [1977] 3 Weekly Law Reports 656 (Court of Appeal) and
Polly Peck International PLC v. Asil Nadir and Others
[1992] 2 All England Reports 238 (Court of Appeal)).
Furthermore, in finding that the arrest and detention of the
applicants in the case of Chrysostomos and Papachrysostomou v. Turkey
were lawful, the Commission and subsequently the Committee of Ministers
of the Council of Europe had recognised as valid the relevant laws of
the "TRNC" (see report of the Commission of 8 July 1993, paras. 143-70
and Resolution DH (95) 245 of 19 October 1995).
In the Turkish Government's submission, the applicant had thus
definitively lost ownership of the land well before the crucial date
of 22 January 1990, i.e. on 7 May 1985 at the latest. The judgment of
the Court in the Papamichalopoulos and Others v. Greece case (of
24 June 1993, Series A no. 260-B), where the Court had found that there
had been a continuing interference with the applicant's property
rights, was moreover distinguishable on the ground that the
Greek Government had not raised any objection ratione temporis in that
case.
It followed, in their submission, that the Court was concerned
in the present case with an instantaneous act which predated the
Government's acceptance of the Court's jurisdiction under Article 46
(art. 46). It was thus incompetent ratione temporis to examine the
applicant's complaints.
36. The applicant, whose submissions were endorsed by the
Government of Cyprus, maintained that the fact that she had been denied
access to her property ever since 1974 and, consequently, had lost all
control over it constituted a continuing violation of her rights and
that the jurisprudence of the Convention institutions and other
international tribunals recognised this concept. She stressed that the
rules of international law must be taken into account when interpreting
the Convention and contended that the 1985 Constitution of the "TRNC"
was - as was recognised by the international community - invalid under
international law, because its origin lay in the illegal use of force
by Turkey. A second reason was that the policy of the
Turkish authorities was based upon racial discrimination in breach of
Article 14 of the Convention (art. 14) and of customary
international law. Accordingly, no effect should be given to the
confiscatory provisions of the 1985 Constitution.
37. In the submission of the Government of Cyprus, the denial of
peaceful enjoyment of the possessions of Greek Cypriots in the occupied
area has been effected by a systematic and continuing process. They
denied, however, that this process had amounted to loss of ownership.
Evidence for this contention was provided by the Settlement and
Distribution of Land and Property of Equivalent Value Law of
28 August 1995 which, according to the Government, purports to extend
what were hitherto limited permits to occupy Greek property and by the
fact that Turkey alleged that there had been no confiscation of
Greek property in northern Cyprus in a memorial circulated within the
Committee of Ministers in 1987.
38. As explained by the Commission's Delegate at the hearing on the
preliminary objections, the Commission also considered that the
applicant's complaints under Article 1 of Protocol No. 1 (P1-1) and
Article 8 of the Convention (art. 8) concerned violations which were
essentially of a continuing nature. In his written observations on the
preliminary objections, the Delegate had therefore taken the view that
the Court has competence to deal with these complaints as far as they
involved the period after 22 January 1990. Moreover, at the hearing
on the merits the Delegate, with the endorsement of the applicant,
asked the Court to consider whether Turkey should be estopped from
introducing new facts relating to the provisions of the
1985 Constitution which had not been referred to during the proceedings
before the Commission.
C. The Court's assessment
39. The Court first observes, as regards the estoppel submission,
that in principle it is not prevented in its examination of the merits
of a complaint from having regard to new facts, supplementing and
clarifying those established by the Commission, if it considers them
to be of relevance (see the McMichael v. the United Kingdom judgment
of 24 February 1995, Series A no. 307-B, p. 51, para. 73, and the
Gustafsson v. Sweden judgment of 25 April 1996, Reports of Judgments
and Decisions 1996-II, p. 655, para. 51).
40. Although in the present case the objection ratione temporis was
raised by the Turkish Government in the proceedings before the
Commission, there was no discussion or analysis in its admissibility
decision of 4 March 1991 as to whether the matters complained of
involved a continuing situation or an instantaneous act. This point,
although touched on to some extent before the Court at the preliminary
objections phase, was the subject of detailed submissions only in the
proceedings on the merits, the new information being mentioned for the
first time in the Turkish Government's written memorial but also in the
appendices to the Cypriot Government's memorial. Against this
background, the plea of estoppel must fail.
41. The Court recalls that it has endorsed the notion of a
conti