EUROPEAN COURT OF HUMAN RIGHTS
In the case of Loizidou v. Turkey (1),
The European Court of Human Rights sitting, in pursuance of
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 R. Macdonald,
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,
Having deliberated in private on 23 June 1994, 22 August 1994,
23 September 1994, 24 November 1994 and on 23 February 1995,
Delivers the following judgment on the preliminary objections,
which was adopted on the last-mentioned date:
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Notes by the Registrar
1. This 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) 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 applicant 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 (see paragraphs 47-52 below) 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.
The applicant Government's application referred to Article 48 (b)
(art. 48-b) of the Convention. The object of the application of the
Government was to obtain a decision as to whether the facts of the case
concerning the applicant's property disclosed a breach by Turkey of its
obligations under Article 1 of Protocol No. 1 (P1-1) and Article 8
(art. 8) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that she
wished to take part in the proceedings and designated the lawyer who
would represent her (Rule 30).
3. The Chamber to be constituted included ex officio Mr F. Gölcüklü
and Mr A.N. Loizou, the elected judges of Turkish and Cypriot
nationality (Article 43 of the Convention) (art. 43), and
Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On
23 November 1993, in the presence of the Registrar, the President drew
by lot the names of the other six members, namely, Mr A. Spielmann,
Mr N. Valticos, Mr R. Pekkanen, Mr A.B. Baka, Mr L. Wildhaber and
Mr P. Jambrek (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. In a letter of 26 November 1993 the Agent of the Turkish
Government stated that his Government considered that the case fell
outside the Court's jurisdiction on the grounds that it related to
events which occurred before Turkey's declaration of acceptance of the
compulsory jurisdiction of the Court dated 22 January 1990 and did not
concern matters arising within the territory covered by this
declaration.
5. On 29 November 1993 the President of the Court submitted to the
plenary Court for decision, pursuant to Rule 34, the question whether
the Government of the Republic of Cyprus had a right under Article 48
(art. 48) to bring the case before the Court.
6. As President of the Chamber (Rule 21 para. 5) Mr Ryssdal, 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 preliminary
objections raised by Turkey. Pursuant to the order made in
consequence, the Registrar received on 17 January 1994, 24 February and
28 February the memorials of the Turkish Government, the applicant and
the applicant Government respectively. The Delegate's observations on
these memorials were submitted on 14 March 1994.
7. On 21 April 1994 the plenary Court considered the issue submitted
to it by the President under Rule 34 and decided, without prejudice to
the preliminary objections raised by Turkey and to the merits of the
case, that the applicant Government had the right to refer the case to
the Court under Article 48 (b) (art. 48-b) of the Convention and that
the Chamber should resume consideration of the case.
8. The Chamber subsequently relinquished jurisdiction in favour of
a Grand Chamber on 27 May 1994 (Rule 51). By virtue of Rule 51
para. 2 (a) and (b) the President and the Vice-President of the Court
(Mr Ryssdal and Mr R. Bernhardt) as well as the other members of the
original Chamber are members of the Grand Chamber. On 28 May 1994 the
names of the additional judges were drawn by lot by the President, in
the presence of the Registrar, namely Mr L.-E. Pettiti, Mr B. Walsh,
Mr R. Macdonald, Mr S.K. Martens, Mrs E. Palm, Mr F. Bigi,
Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici and Mr U. Lohmus.
Subsequently, Mr Valticos, being prevented from taking part in
the proceedings, was replaced by Mr J.M. Morenilla (Rules 24 para. 1
and 51 para. 6). In addition Mr Bigi, being unable to participate in
the Court's deliberations on 22 August and 23 September 1994, took no
further part in the proceedings.
9. In accordance with the President's decision, the hearing of the
preliminary objections took place in public in the Human Rights
Building, Strasbourg, on 22 June 1994. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Turkish Government
Mr B. Çaglar, Agent,
Mr H. Golsong, Counsel,
Mr M. Özmen, Ministry of Foreign Affairs,
Mrs D. Akçay, Ministry of Foreign Affairs, Advisers;
(b) for the Cypriot Government
Mr M. Triantafyllides, Attorney-General, Agent,
Miss P. Polychronidou, Barrister-at-Law, Counsel;
(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 Çaglar, Mr Golsong,
Mr Demetriades, Mr Brownlie and Mr Triantafyllides and also replies to
a question put by one of its members individually.
AS TO THE FACTS
I. Particular circumstances of the case
10. The applicant, a Cypriot national, grew up in Kyrenia in northern
Cyprus. In 1972 she married and moved with her husband to Nicosia.
11. 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. 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.
12. 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.
13. 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.
14. 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. Turkey's declaration of 28 January 1987 under Article 25
(art. 25) of the Convention
15. On 28 January 1987 the Government of Turkey deposited the
following declaration with the Secretary General of the Council of
Europe pursuant to Article 25 (art. 25) of the Convention (see
paragraph 65 below):
"The Government of Turkey, acting pursuant to Article 25 (1)
(art. 25-1) of the Convention for the Protection of Human Rights
and Fundamental Freedoms hereby declares to accept the competence
of the European Commission of Human Rights and to receive
petitions according to Article 25 (art. 25) of the Convention
subject to the following:
(i) the recognition of the right of petition extends only to
allegations concerning acts or omissions of public authorities
in Turkey performed within the boundaries of the territory to
which the Constitution of the Republic of Turkey is applicable;
(ii) the circumstances and conditions under which Turkey, by
virtue of Article 15 (art. 15) of the Convention, derogates from
her obligations under the Convention in special circumstances
must be interpreted, for the purpose of the competence attributed
to the Commission under this declaration, in the light of
Articles 119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this
declaration shall not comprise matters regarding the legal status
of military personnel and in particular, the system of discipline
in the armed forces;
(iv) for the purpose of the competence attributed to the
Commission under this declaration, the notion of a "democratic
society" in paragraphs 2 of Articles 8, 9, 10 and 11 (art. 8-2,
art. 9-2, art. 10-2, art. 11-2) of the Convention must be
understood in conformity with the principles laid down in the
Turkish Constitution and in particular its Preamble and its
Article 13;
(v) for the purpose of the competence attributed to the
Commission under the present declaration, Articles 33, 52 and 135
of the Constitution must be understood as being in conformity
with Article 10 and 11 (art. 10, art. 11) of the Convention.
This declaration extends to allegations made 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. This declaration is valid for three years from the
date of deposit with the Secretary General of the Council of
Europe."
B. Exchange of correspondence between the Secretary General of the
Council of Europe and the Permanent Representative of Turkey
16. On 29 January 1987 the Secretary General of the Council of Europe
transmitted the above declaration to the other High Contracting Parties
to the Convention indicating that he had drawn the Turkish authorities'
attention to the fact that the notification made pursuant to
Article 25 para. 3 (art. 25-3) of the Convention in no way prejudged
the legal questions which might arise concerning the validity of
Turkey's declaration.
17. In a letter dated 5 February 1987 to the Secretary General, the
Permanent Representative of Turkey to the Council of Europe stated that
the wording of Article 25 para. 3 (art. 25-3) of the Convention offered
no basis for expressing opinions or adding comments when transmitting
copies of the Turkish declaration to the High Contracting Parties. He
added:
"International treaty practice, in particular that followed by
the Secretary-General of the United Nations as depositary to
similar important treaties as the Statute of the International
Court of Justice or the covenants and conventions dealing with
human rights and fundamental freedoms, also confirms that the
depositary has to refrain from any comments on the substance of
any declaration made by a Contracting Party."
C. Reactions of various Contracting Parties to Turkey's Article 25
(art. 25) declaration
18. On 6 April 1987 the Deputy Minister for Foreign Affairs of Greece
wrote to the Secretary General stating inter alia that reservations to
the European Convention on Human Rights may not be formulated on the
basis of any provision other than Article 64 (art. 64). He added:
"Furthermore, Article 25 (art. 25) provides neither directly nor
implicitly the possibility of formulating reservations similar
to the reservations set out in the Turkish declaration. The
position cannot be otherwise, for if reservations could be made
on the basis of Article 25 (art. 25), such a method of proceeding
would undermine Article 64 (art. 64) and would sooner or later
destroy the very foundations of the Convention.
...
It follows that the Turkish reservations, as they are outside the
scope of Article 64 (art. 64) must be considered as unauthorised
reservations and, accordingly, as illegal reservations.
Consequently, they are null and void and may not give rise to any
effect in law."
19. In a letter of 21 April 1987 the Permanent Representative of
Sweden wrote to the Secretary General stating inter alia that "the
reservations and declarations ... raise various legal questions as to
the scope of the [Turkish] recognition. The Government therefore
reserves the right to return to this question in the light of such
decisions by the competent bodies of the Council of Europe that may
occur in connection with concrete petitions from individuals".
20. The Minister for Foreign Affairs of Luxembourg, in a letter of
21 April 1987 to the Secretary General stated inter alia that
"Luxembourg reserves to itself the right to express ... its position
in regard to the Turkish Government's declaration" before the competent
bodies of the Council of Europe. He indicated that "the absence of a
formal and official reaction on the merits of the problem should not
... be interpreted as a tacit recognition by Luxembourg of the Turkish
Government's reservations".
21. In a letter of 30 April 1987 to the Secretary General the
Permanent Representative of Denmark stated inter alia as follows:
"In the view of the Danish Government, the reservations and
declarations which accompany the said recognition raise various
legal questions as to the scope of the recognition. The
Government therefore reserves its right to return to these
questions in the light of future decisions by the competent
bodies of the Council of Europe in connection with concrete
petitions from individuals."
22. The Permanent Representative of Norway, in his letter of
4 May 1987 to the Secretary General, stated that the wording of the
declaration could give rise to difficult issues of interpretation as
to the scope of the recognition of the right to petition. He
considered that such issues fell to be resolved by the European
Commission of Human Rights in dealing with concrete petitions. He
added:
"It is therefore desirable to avoid any doubt as to the scope and
validity of the recognition by individual States of this right
which may be raised by generalised stipulations in respect of the
context in which petitions would be accepted as admissible,
interpretative statements or other conditionalities."
23. In a letter dated 26 June 1987 to the Secretary General, the
Permanent Representative of Turkey stated that the points contained in
the Turkish declaration were not to be considered as "reservations" in
the sense of international treaty law. He pointed out, inter alia,
that the only competent organ to make a legally binding assessment as
to the validity of the conditions attaching to the Article 25 (art. 25)
declaration was "the European Commission of Human Rights, when being
seized of an individual application, and eventually the Committee of
Ministers, when acting pursuant to Article 32 (art. 32) of the
Convention".
24. The Permanent Representative of Belgium, in a letter of
22 July 1987 to the Secretary General, stated that the conditions and
qualifications set forth in the declaration raised legal questions as
to the system of protection set up under the Convention. He added:
"Belgium therefore reserves the right to express its position in
regard to the Turkish Government's declaration, at a later stage
and before the competent bodies of the Council of Europe.
Meanwhile the absence of a formal reaction on the merits of the
problem should by no means be interpreted as a tacit recognition
by Belgium of the Turkish Government's conditions and
qualifications."
D. Turkey's subsequent Article 25 (art. 25) declarations
25. Turkey subsequently renewed her declaration under Article 25
(art. 25) of the Convention for three years as from 28 January 1990.
The declaration read as follows:
"The Government of Turkey, acting pursuant to Article 25 (1)
(art. 25-1) of the Convention for the Protection of Human Rights
and Fundamental Freedoms hereby declares to accept the competence
of the European Commission of Human Rights to receive petitions
according to Article 25 (art. 25) of the Convention on the basis
of the following:
(i) the recognition of the right of petition extends only to
allegations concerning acts or omissions of public authorities
in Turkey performed within the boundaries of the national
territory of the Republic of Turkey;
(ii) the circumstances and conditions under which Turkey, by
virtue of Article 15 (art. 15) of the Convention, derogates from
her obligations under the Convention in special circumstances
must be interpreted, for the purpose of the competence attributed
to the Commission under this declaration, in the light of
Articles 119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this
declaration shall not comprise matters regarding the legal status
of military personnel and in particular, the system of discipline
in the armed forces;
(iv) for the purpose of the competence attributed to the
Commission under this declaration, Articles 8, 9, 10 and 11
(art. 8, art. 9, art. 10, art. 11) of the Convention shall be
interpreted by giving special emphasis to `those legal and
factual features which characterize the life of the society'
(European Court of Human Rights, Judgment of 23 July 1968, p. 34)
in Turkey, as expressed notably by the Turkish Constitution
including its Preamble.
This declaration extends to allegations made in respect of facts,
including judgments which are based on such facts which have
occurred subsequent to 28 January 1987, date of the deposit of
the previous declaration by Turkey. This declaration is valid
for three years as from January 28, 1990."
26. A further renewal for a three-year period as from 28 January 1993
reads as follows:
"The Government of Turkey, acting pursuant to Article 25 (1)
(art. 25-1) of the Convention for the Protection of Human Rights
and Fundamental Freedoms, hereby declares to accept the
competence of the European Commission of Human Rights, to receive
petitions which raise allegations concerning acts or omissions
of public authorities in Turkey in as far as they have been
performed within the boundaries of the national territory of the
Republic of Turkey.
This declaration extends to allegations made in respect of facts,
including judgments which are based on such facts which have
occurred subsequent to 28 January 1987, date of the deposit of
the first declaration made by Turkey under Article 25 (art. 25)
of the Convention. This declaration is valid for three years
from 28 January 1993."
E. Turkish declaration of 22 January 1990 under Article 46
(art. 46) of the Convention
27. 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 (art. 46) of the Convention
(see paragraph 66 below):
"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 (art. 1) of the Convention, 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."
This declaration was renewed for a period of three years as from
22 January 1993 in substantially the same terms.
28. The Secretary General of the Council of Europe acknowledged
deposit of the Turkish declaration under Article 46 (art. 46) in a
letter dated 26 January 1990 and pointed out that her acknowledgement
was without prejudice to the legal questions that might arise
concerning the validity of the Turkish declaration.
29. In a letter of 31 May 1990 to the Secretary General of the
Council of Europe, the Permanent Representative of Greece stated inter
alia as follows:
"Article 46 (art. 46) of the said Convention is clear and to be
strictly interpreted and applied. It provides that declarations
of recognition of the Court's jurisdiction may be subject to two
conditions only: (a) on condition of reciprocity, if they are not
made unconditionally, and (b) for a specified period.
Consequently, the above-mentioned declaration of the Turkish
Government which, in addition to these two conditions, contains
further restrictions or reservations, is, where the latter are
concerned, incompatible with Article 46 (art. 46) and with the
European Convention on Human Rights in general, as indeed was
already pointed out in the Greek Government's letter of
6 April 1987 in connection with the Turkish Government's
declaration under Article 25 (art. 25) of the said Convention.
It follows that these restrictions or reservations are null and
void and may have no legal effect."
II. Cypriot declaration under Article 25 (art. 25)
30. By letter of 9 August 1988 the Government of Cyprus deposited the
following declaration under Article 25 (art. 25) of the Convention:
"On behalf of the Government of the Republic of Cyprus, I
declare, in accordance with Article 25 (art. 25) of the
Convention for the Protection of Human Rights and Fundamental
Freedoms of 4 November 1950, that the Government of the Republic
of Cyprus recognizes, for the period beginning on 1 January 1989
and ending on 31 December 1991, the competence of the European
Commission of Human Rights to receive petitions submitted to the
Secretary General of the Council of Europe subsequently to
31 December 1988, by any person, non-governmental organisation
or group of individuals claiming, in relation to any act or
decision occurring or any facts or events arising subsequently
to 31 December 1988, to be the victim of a violation of the
rights set forth in that Convention.
On behalf of the Government of the Republic of Cyprus, I further
declare that the competence of the Commission by virtue of
Article 25 (art. 25) of the Convention is not to extend to
petitions concerning acts or omissions alleged to involve
breaches of the Convention or its Protocols, in which the
Republic of Cyprus is named as the Respondent, if the acts or
omissions relate to measures taken by the Government of the
Republic of Cyprus to meet the needs resulting from the situation
created by the continuing invasion and military occupation of
part of the territory of the Republic of Cyprus by Turkey."
31. In a letter dated 12 September 1988, the Secretary General
recalled that according to the general rules, the notification made
pursuant to Article 25 para. 3 (art. 25-3) in no way prejudged the
legal questions that might arise concerning the validity of the Cypriot
declaration.
32. The declaration was renewed in the same terms on 2 January 1992.
By letter of 22 December 1994 it was renewed for a further period of
three years without the restrictions ratione materiae set out above.
III. Declaration of the United Kingdom under Article 25 (art. 25)
33. The United Kingdom's Article 25 (art. 25) declaration of
14 January 1966, which has been renewed successively, reads as follows:
"On instructions from Her Majesty's Principal Secretary of State
for Foreign Affairs, I have the honour to declare in accordance
with the provisions of Article 25 (art. 25) of the Convention for
the Protection of Human Rights and Fundamental Freedoms, signed
at Rome on the 4th November, 1950, that the Government of the
United Kingdom of Great Britain and Northern Ireland recognise,
in respect of the United Kingdom of Great Britain and Northern
Ireland only and not, pending further notification, in respect
of any other territory for the international relations of which
the Government of the United Kingdom are responsible, for the
period beginning on the 14th January 1966, and ending on
13th of January 1969, the competence of the European Commission
of Human Rights to receive petitions submitted to the Secretary
General of the Council of Europe subsequently to the
13th of January 1966, by any person, non-governmental
organisation or group of individuals claiming, in relation to any
act or decision occurring or any facts or events arising
subsequently to the 13th of January 1966, to be the victim of a
violation of the rights set forth in that Convention and in the
Protocol thereto which was opened for signature at Paris on the
20th March 1952.
This declaration does not extend to petitions in relation to
anything done or occurring in any territory in respect of which
the competence of the European Commission of Human Rights to
receive petitions has not been recognised by the Government of
the United Kingdom or to petitions in relation to anything done
or occurring in the United Kingdom in respect of such a territory
or of matters arising there."
PROCEEDINGS BEFORE THE COMMISSION
34. 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 (art. 3, art. 5, art. 8) of the
Convention. She further complained that the refusal of access to her
property constituted a continuing violation of Article 8 (art. 8) of
the Convention and Article 1 of Protocol No. 1 (P1-1).
35. 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 (art. 8) and Article 1 of Protocol No. 1
(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 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
this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 310 of Series A
of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
36. At the close of the hearing the Agent of the Turkish Government
stated as follows:
"In the light of what has been stated, it is my honour on behalf
of the Turkish Government to urge the Court to declare that it
has no jurisdiction to examine this case, based on the
application lodged by Mrs Loizidou and referred to the Court by
the Greek Cypriot administration. The allegations made lie
outside the jurisdiction of Turkey within the meaning of
Article 1 (art. 1) of the Convention. As a subsidiary argument,
we would also like the Court to find that it has no jurisdiction
to examine this application filed by Mrs Loizidou on the grounds
of the territorial limitation, which is an integral part of the
recognition by Turkey of the jurisdiction of the Commission,
pursuant to Article 25 (art. 25) of the Convention.
Secondly, on behalf of the Turkish Government, I would ask the
Court to declare that it has no jurisdiction to examine the
application filed by Mrs Loizidou since the alleged facts
occurred prior to the date on which the Turkish declaration,
recognising the Court's jurisdiction, entered into force,
pursuant to Article 46 (art. 46) of the Convention. Furthermore,
the facts occurred prior to the date on which the declaration,
recognising the jurisdiction of the Commission, entered into
force, pursuant to Article 25 (art. 25)."
37. In their memorial, the applicant Government stated:
"For all the above reasons the Cyprus Government submits that
(a) the 'preliminary objections of Turkey' should be rejected,
(b) the reference of the case to the Court by the Cyprus
Government is well founded and is justified in the interest of
the European public order and the protection of the human rights
under the Convention and (c) that the complaints of the applicant
in the above case for violations of her rights under the
Convention are valid."
38. The applicant, in her memorial, concluded as follows:
"On the basis of the considerations set forth above the Court is
requested
(i) to reject all the preliminary objections advanced on behalf
of Turkey; and
(ii) to affirm the existence of jurisdiction in respect of the
continuing violations of Article 1 of Protocol No. 1 (P1-1) and
of Article 8 (art. 8) of the Convention with effect from
28 January 1987 or (in the alternative) with effect from
22 January 1990."
AS TO THE LAW
I. THE STANDING OF THE APPLICANT GOVERNMENT
39. Throughout the proceedings the Turkish Government systematically
referred to the applicant Government as the "Greek Cypriot
administration". They indicated, without developing any arguments on
this point, that they did not accept the capacity of the applicant
Government to represent the people of Cyprus and that their appearance
before the Court in the present case should not be understood as
amounting to any form of recognition of that Government.
40. The Court confines itself to noting, with reference inter alia
to the consistent practice of the Council of Europe and the decisions
of the Commission in the inter-State cases of Cyprus v. Turkey, that
the applicant Government have been recognised by the international
community as the Government of the Republic of Cyprus (see in this
connection, applications nos. 6780/74 and 6950/75, Cyprus v. Turkey,
26 May 1975, Decisions and Reports (DR) 2, p. 125, at pp. 135-36;
no. 8007/77, Cyprus v. Turkey, 10 July 1978, DR 13, p. 85, at p. 146).
Their locus standi as the Government of a High Contracting Party to the
Convention cannot therefore be in doubt. Moreover it has not been
contested that the applicant is a national of the Republic of Cyprus.
41. In any event recognition of an applicant Government by a
respondent Government is not a precondition for either the institution
of proceedings under Article 24 (art. 24) of the Convention or the
referral of cases to the Court under Article 48 (art. 48) (see
application no. 8007/77, loc. cit., pp. 147-48). If it were otherwise,
the system of collective enforcement which is a central element in the
Convention system could be effectively neutralised by the interplay of
recognition between individual Governments and States.
II. ALLEGED ABUSE OF PROCESS
42. The Turkish Government submitted that the overriding aim of the
application was political propaganda. The decision of the applicant
Government to bring the case before the Court was not, in fact, made
in order to complain of the alleged violations of the applicant's
rights but rather to stimulate a debate before the Court on the status
of the "Turkish Republic of Northern Cyprus" (the "TRNC"). Such an
approach amounted to an abuse of process. The complaints therefore
fell outside the Court's competence since they seek to pervert the
character of the judicial control procedure.
43. The applicant Government and the Commission took issue with this
submission. The Government of Cyprus argued inter alia that the
applicant's case is one of thousands of instances of displaced persons
who have been deprived of their property because of the illegal Turkish
occupation of northern Cyprus. Moreover, it was only natural that the
Government of Cyprus should be interested in the fate of their
citizens. The applicant, for her part, considered that the claim
lacked the status of a preliminary objection.
44. The Court observes that this objection was not raised in the
proceedings before the Commission. Accordingly the Turkish Government
is estopped from raising it before the Court in so far as it applies
to Mrs Loizidou.
45. In so far as it is directed to the applicant Government, the
Court notes that this Government have referred the case to the Court
inter alia because of their concern for the rights of the applicant and
other citizens in the same situation. The Court does not consider such
motivation to be an abuse of its procedures.
It follows that this objection must be rejected.
46. In the light of this conclusion it leaves open the question
whether it could refuse jurisdiction in an application by a State under
Article 48 (b) (art. 48-b) on the grounds of its allegedly abusive
character.
III. THE TURKISH GOVERNMENT'S ROLE IN THE PROCEEDINGS
47. The Turkish Government submitted that, in essence, the present
case did not concern the acts or omissions of Turkey but those of the
"TRNC" which they claimed to be an independent State established in the
north of Cyprus. As the only Contracting Party to have recognised the
"TRNC", with whose authorities it has close and friendly relations, its
role before the Court was limited to that of an amicus curiae since the
"TRNC" was not itself able to be a "party" to the present proceedings.
48. For the applicant Government, it was not open to Turkey under the
Rules of Court to change its status in this way and to appear on behalf
of an illegal regime which had been established in defiance of
international law and which has not been recognised by the
international community.
49. The applicant for her part considered that the Turkish
Government's position amounted, in effect, to an objection ratione
loci.
50. The Commission maintained that Turkey appeared not as an amicus
curiae but as a High Contracting Party to the Convention.
51. The Court does not consider that it lies within the discretion
of a Contracting Party to the Convention to characterise its standing
in the proceedings before the Court in the manner it sees fit. It
observes that the case originates in a petition made under Article 25
(art. 25), brought by the applicant against Turkey in her capacity as
a High Contracting Party to the Convention and has been referred to the
Court under Article 48 (b) (art. 48-b) by another High Contracting
Party.
52. The Court therefore considers - without prejudging the remainder
of the issues in these proceedings - that Turkey is the respondent
Party in this case.
IV. SCOPE OF THE CASE
53. Before the Commission the applicant complained that her right to
the peaceful enjoyment of her possessions had been affected as a result
of the continued occupation and control of the northern part of Cyprus
by Turkish armed forces which have on several occasions prevented her
from gaining access to her home and other properties there. She
submitted that this state of affairs constituted a continuing violation
of her property rights contrary to Article 1 of Protocol No. 1 (P1-1)
to the Convention as well as a continuing violation of her right to
respect for her home contrary to Article 8 (art. 8) of the Convention.
She further alleged violations of Articles 3, 5 para. 1 and 8 (art. 3,
art. 5-1, art. 8) of the Convention arising out of her arrest and
detention (see paragraph 34 above).
54. In the application referring the present case to the Court under
Article 48 (b) (art. 48-b) of the Convention the applicant Government
have confined themselves to seeking a ruling on the complaints under
Article 1 of Protocol No. 1 (P1-1) and Article 8 (art. 8), in so far
as they have been declared admissible by the Commission (see
paragraph 35 above), concerning access to the applicant's property.
Accordingly, as is undisputed, it is only these complaints which are
before the Court. The remaining part of the case concerning the
applicant's arrest and detention thus falls within the competence of
the Committee of Ministers of the Council of Europe in accordance with
Article 32 para. 1 (art. 32-1) of the Convention.
The Court notes that the issue whether the Convention and the
Rules of Court permit a partial referral under Article 48 (art. 48),
as in the present case, has not been called into question by those
appearing before the Court. Indeed, Turkey ("the respondent
Government") has accepted that the scope of the case be confined in
this way. In these circumstances the Court does not find it necessary
to give a general ruling on the question whether it is permissible to
limit a referral to the Court to some of the issues on which the
Commission has stated its opinion.
V. OBJECTIONS RATIONE LOCI
55. The respondent Government have filed two preliminary objections
ratione loci. In the first place they claimed that the Court lacks
competence to consider the merits of the case on the grounds that the
matters complained of did not fall within Turkish jurisdiction but
within that of the "TRNC". In the second place they contended that,
in accordance with their declarations under Articles 25 and 46
(art. 25, art. 46) of the Convention (see paragraphs 4, 15 and 27
above), they had not accepted either the competence of the Commission
or the Court to examine acts and events outside their metropolitan
territory.
The Court will examine each of these objections in turn.
A. Whether the facts alleged by the applicant are capable of
falling within the jurisdiction of Turkey under Article 1
(art. 1) of the Convention
1. Submissions of those appearing before the Court
56. The respondent Government first pointed out that the question of
access to property was obviously outside the realm of Turkey's
"jurisdiction". This could be seen from the fact that it formed one
of the core items in the inter-communal talks between the Greek-Cypriot
and Turkish-Cypriot communities.
Furthermore the mere presence of Turkish armed forces in northern
Cyprus was not synonymous with "jurisdiction" any more than it is with
the armed forces of other countries stationed abroad. In fact Turkish
armed forces had never exercised "jurisdiction" over life and property
in northern Cyprus. Undoubtedly it was for this reason that the
findings of the Commission in the inter-State cases of Cyprus v. Turkey
(applications nos. 6780/74, 6950/75 and 8007/77, supra cit.) had not
been endorsed by the Committee of Ministers whose stand was in line
with the realities of the situation prevailing in Cyprus following the
intervention of Turkey as one of the three guarantor powers of the
Republic of Cyprus.
Nor did Turkey exercise overall control of the border areas as
found by the Commission in its admissibility decision in the present
case. She shares control with the authorities of the "TRNC" and when
her armed forces act alone they do so on behalf of the "TRNC" which
does not dispose of sufficient forces of its own. The fact that the
Turkish armed forces operate within the command structure of the
Turkish army does not alter this position.
According to the respondent Government, far from being a "puppet"
State as alleged by the applicant, the "TRNC" is a democratic
constitutional State with impeccable democratic features and
credentials. Basic rights are effectively guaranteed and there are
free elections. It followed that the exercise of public authority in
the "TRNC" was not imputable to Turkey. The fact that this State has
not been recognised by the international community was not of any
relevance in this context.
57. The applicant, whose submissions were endorsed by the Government
of Cyprus, contended that the question of responsibility in this case
for violations of the Convention must be examined with reference to the
relevant principles of international law. In this respect the
Commission's approach which focused on the direct involvement of
Turkish officials in violations of the Convention was not, under
international law, the correct one. A State is, in principle,
internationally accountable for violations of rights occurring in
territories over which it has physical control.
According to the applicant, international law recognises that a
State which is thus accountable with respect to a certain territory
remains so even if the territory is administered by a local
administration. This is so whether the local administration is
illegal, in that it is the consequence of an illegal use of force, or
whether it is lawful, as in the case of a protected State or other
political dependency. A State cannot avoid legal responsibility for
its illegal acts of invasion and military occupation, and for
subsequent developments, by setting up or permitting the creation of
forms of local administration, however designated. Thus the
controlling powers in the "puppet" States that were set up in
Manchukuo, Croatia and Slovakia during the period 1939-45 were not
regarded as absolved from responsibilities for breaches of
international law in these administrations (Whiteman, Digest of
International Law, vol. 8, pp. 835-37 (1967)). In the same vein, the
international accountability of the protecting or ultimate sovereign
remains in place even when a legitimate political dependency is
created. This responsibility of the State in respect of protectorates
and autonomous regions is affirmed by the writings of authoritative
legal publicists (Rousseau, Droit international public, vol. V, 1983,
p. 31, para. 28; Reuter, Droit international public, 6th ed., 1983,
p. 262; Répertoire suisse de droit international public, vol. III,
1975, pp. 1722-23; Verzijl, International Law in Historical
Perspective, vol. IV, 1973, pp. 710-11).
The applicant further submitted that in the present case to apply
a criterion of responsibility which required the direct intervention
of Turkish military personnel in respect of each prima facie violation
of the Convention in northern Cyprus would be wholly at variance with
the normal mode of applying the principles of State responsibility set
out above. To require applicants to fulfil such a standard at the
merits stage would be wholly unrealistic and would also involve a de
facto amnesty and a denial of justice.
Finally, if Turkey was not to be held responsible for conditions
in northern Cyprus, no other legal person can be held responsible.
However the principle of the effective protection of Convention rights
recognised in the case-law of the Court requires that there be no
lacuna in the system of responsibility. The principles of the
Convention system and the international law of State responsibility
thus converge to produce a regime under which Turkey is responsible for
controlling events in northern Cyprus.
58. On this issue the Commission was of the opinion that the
applicant had been prevented from gaining access to her property due
to the presence of Turkish armed forces in the northern part of Cyprus
which exercise an overall control in the border area. This refusal of
access was thus imputable to Turkey.
2. The Court's examination of the issue
59. Article 1 (art. 1) of the Convention reads as follows:
"The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I
of [the] Convention."
60. The question before the Court is whether its competence to
examine the applicant's complaints is excluded on the grounds that they
concern matters which cannot fall within the "jurisdiction" of the
respondent Government.
61. The Court would emphasise that it is not called upon at the
preliminary objections stage of its procedure to examine whether Turkey
is actually responsible under the Convention for the acts which form
the basis of the applicant's complaints. Nor is it called upon to
establish the principles that govern State responsibility under the
Convention in a situation like that obtaining in the northern part of
Cyprus. Such questions belong rather to the merits phase of the
Court's procedure. The Court's enquiry is limited to determining
whether the matters complained of by the applicant are capable of
falling within the "jurisdiction" of Turkey even though they occur
outside her national territory.
62. In this respect the Court recalls that, although Article 1
(art. 1) sets limits on the reach of the Convention, the concept of
"jurisdiction" under this provision is not restricted to the national
territory of the High Contracting Parties. According to its
established case-law, for example, the Court has held that the
extradition or expulsion of a person by a Contracting State may give
rise to an issue under Article 3 (art. 3), and hence engage the
responsibility of that State under the Convention (see the Soering v.
the United Kingdom judgment of 7 July 1989, Series A no. 161,
pp. 35-36, para. 91; the Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 28, paras. 69 and 70, and the
Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, p. 34, para. 103). In addition, the
responsibility of Contracting Parties can be involved because of acts
of their authorities, whether performed within or outside national
boundaries, which produce effects outside their own territory (see the
Drozd and Janousek v. France and Spain judgment of 26 June 1992,
Series A no. 240, p. 29, para. 91).
Bearing in mind the object and purpose of the Convention, the
responsibility of a Contracting Party may 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.
63. In this connection the respondent Government have acknowledged
that the applicant's loss of control of her property stems from the
occupation of the northern part of Cyprus by Turkish troops and the
establishment there of the "TRNC". Furthermore, it has not been
disputed that the applicant was prevented by Turkish troops from
gaining access to her property.
64. It follows that such acts are capable of falling within Turkish
"jurisdiction" within the meaning of Article 1 (art. 1) of the
Convention. Whether the matters complained of are imputable to Turkey
and give rise to State responsibility are thus questions which fall to
be determined by the Court at the merits phase.
B. Validity of the territorial restrictions attached to Turkey's
Article 25 and 46 (art. 25, art. 46) declarations
65. The relevant provisions of Article 25 (art. 25) of the Convention
read as follows:
"1. The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person,
non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in [the] Convention, provided
that the High Contracting Party against which the complaint has
been lodged has declared that it recognises the competence of the
Commission to receive such petitions. Those of the High
Contracting Parties who have made such a declaration undertake
not to hinder in any way the effective exercise of this right.
2. Such declarations may be made for a specific period.
..."
66. Article 46 (art. 46) of the Convention states:
"1. Any of the High Contracting Parties may at any time declare
that it recognises as compulsory ipso facto and without special
agreement the jurisdiction of the Court in all matters concerning
the interpretation and application of the ... Convention.
2. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of
several or certain other High Contracting Parties or for a
specified period.
3. These declarations shall be deposited with the Secretary
General of the Council of Europe who shall transmit copies
thereof to the High Contracting Parties."
67. The respondent Government submitted that the relevant territorial
and other restrictions contained in the Article 25 and 46 (art. 25,
art. 46) declarations of 28 January 1987 and 22 January 1990 (as
renewed on 22 January 1993) respectively, are legally valid and bind
the Convention institutions. The system set up under Articles 25 and
46 (art. 25, art. 46) is an optional one into which Contracting States
may, or may not, "contract-in". There is no indication that the
Contracting Parties agreed when the Convention was being drafted that
a partial recognition of the competence of the Commission and Court was
impermissible. If they had meant to prohibit restrictions in
Article 25 and 46 (art. 25, art. 46) declarations they would have
included a special provision to this effect as is common in the treaty
practice of the Council of Europe.
In fact the Convention system has multiple clauses, such as
Articles 63 and 64 (art. 63, art. 64), Article 6 para. 2 of
Protocol No. 4 and Article 7 para. 2 of Protocol No. 7, (P4-6-2,
P7-7-2), which provide the basis for "à la carte" undertakings by the
Contracting Parties. Moreover, other States have attached substantive
restrictions to their instruments of acceptance such as the United
Kingdom (see paragraph 33 above) - in this case a territorial
restriction - and Cyprus (see paragraphs 30 and 32 above).
The respondent Government also referred to the established
practice under Article 36 of the Statute of the International Court of
Justice to permit the attachment of substantive, territorial and
temporal restrictions to the optional recognition of the Court's
jurisdictional competence. The wording in Article 36 para. 3 of the
Statute is, in all material respects, the same as that used in
Articles 25 and 46 (art. 25, art. 46) of the Convention. In this
connection, the drafting history of the Convention reveals that
Article 36 of the Statute served as a model for Article 46 (art. 46)
of the Convention. It is a well established principle in international
treaty law that an expression used in one treaty will bear the same
meaning if used in another.
In the respondent Government's further submission, Articles 25
and 46 (art. 25, art. 46) must be interpreted with reference to their
meaning when the Convention was being drafted. This principle of
contemporaneous meaning is part of the "good faith" interpretation
embodied in Article 31 of the Vienna Convention on the Law of Treaties.
At that time, international judicial practice permitted the addition
of conditions or restrictions to any optional recognition of the
jurisdiction of an international tribunal. The fact that the drafters
of the Convention did not choose to use different words indicates that
they intended to give States the same freedom to attach restrictions
to their declarations as is enjoyed under Article 36 of the Statute of
the International Court of Justice.
Finally, with regard to subsequent treaty practice, while there
have been statements opposing the Turkish interpretation of
Articles 25 and 46 (art. 25, art. 46), it has not been established that
there is a practice reflecting an agreement among all Contracting
Parties concerning the attachment of conditions to these instruments
of acceptance.
68. For the applicant and the Government of Cyprus, when States make
declarations under Articles 25 and 46 (art. 25, art. 46) recognising
the competence of the Commission and Court, the only conditions
permitted are those ratione temporis. In reality, the territorial
restriction in the Turkish declarations is tantamount to a disguised
reservation.
Furthermore, the long-established practice of the International
Court of Justice in accepting restrictions on the jurisdiction of the
Court under Article 36 of the Statute affords no assistance in the
present case because of the substantial differences between the two
systems. The International Court of Justice is a free-standing
international tribunal which has no links to a standard-setting treaty
such as the Convention.
69. The Commission, with reference to its admissibility decision in
the present case, also considered that the restrictions attaching to
the Turkish Article 25 (art. 25) declaration were invalid with the
exception of the temporal restriction. It expressed the same view as
regards the territorial restriction contained in the Article 46
(art. 46) declaration.
70. The Court observes that Articles 25 and 46 (art. 25, art. 46) of
the Convention are provisions which are essential to the effectiveness
of the Convention system since they delineate the responsibility of the
Commission and Court "to ensure the observance of the engagements
undertaken by the High Contracting Parties" (Article 19) (art. 19), by
determining their competence to examine complaints concerning alleged
violations of the rights and freedoms set out in the Convention. In
interpreting these key provisions it must have regard to the special
character of the Convention as a treaty for the collective enforcement
of human rights and fundamental freedoms.
As was observed in the Court's Ireland v. the United Kingdom
judgment of 18 January 1978 (Series A no. 25, p. 90, para. 239),
"Unlike international treaties of the classic kind, the
Convention comprises more than mere reciprocal engagements
between Contracting States. It creates, over and above a network
of mutual, bilateral undertakings, objective obligations which,
in the words of the Preamble benefit from a 'collective
enforcement'."
71. That the Convention is a living instrument which must be
interpreted in the light of present-day conditions is firmly rooted in
the Court's case-law (see, inter alia, the Tyrer v. the United Kingdom
judgment of 25 April 1978, Series A no. 26, pp. 15-16, para. 31). Such
an approach, in the Court's view, is not confined to the substantive
provisions of the Convention, but also applies to those provisions,
such as Articles 25 and 46 (art. 25, art. 46), which govern the
operation of the Convention's enforcement machinery. It follows that
these provisions cannot be interpreted solely in accordance with the
intentions of their authors as expressed more than forty years ago.
Accordingly, even if it had been established, which is not the
case, that restrictions, other than those ratione temporis, were
considered permissible under Articles 25 and 46 (art. 25, art. 46) at
a time when a minority of the present Contracting Parties adopted the
Convention, such evidence could not be decisive.
72. In addition, the object and purpose of the Convention as an
instrument for the protection of individual human beings requires that
its provisions be interpreted and applied so as to make it