Loizidou v. Turkey

COURT (CHAMBER) 2.
In a judgment of 23 March 1995 on

CASE OF LOIZIDOU v. TURKEY various preliminary objections raised by
(Application no. 15318/89) the Turkish
JUDGMENT Government (Series A no. 310), the Court
STRASBOURG dismissed an objection concerning
18 December 1996 alleged abuse of process;
In the case of Loizidou v. Turkey1, held that the facts alleged by the applicant
The European Court of Human Rights, were capable of falling under Turkish
sitting, pursuant to Rule 51 of Rules of "jurisdiction" within the
Court A2, as a Grand meaning of Article 1 of the Convention
Chamber composed of the following (art. 1) and that the territorial restrictions
judges: attached to Turkey’s
Mr R. RYSSDAL, President, Articles 25 and 46 (art. 25, art. 46)
Mr R. BERNHARDT, declarations were invalid but that the
Mr F. GÖLCÜKLÜ, declarations contained valid
Mr L.-E. PETTITI, acceptances of the competence of the
Mr B. WALSH, Commission and Court. It also joined to
Mr A. SPIELMANN, the merits the preliminary
Mr S.K. MARTENS, objection ratione temporis.
Mrs E. PALM, 3. As President of the Chamber (Rule 21
Mr R. PEKKANEN, para. 6), Mr R. Ryssdal, acting through
Mr A.N. LOIZOU, the Registrar,
Mr J.M. MORENILLA, consulted the Agents of the Governments,
Mr A.B. BAKA, the applicant’s lawyer and the Delegate of
Mr M.A. LOPES ROCHA, the Commission on
Mr L. WILDHABER, the organisation of the proceedings (Rules
Mr G. MIFSUD BONNICI, 37 para. 1 and 38) in relation to the merits.
Mr P. JAMBREK, Pursuant to the
Mr U. LOHMUS, order made in consequence, the Registrar
and also of Mr H. PETZOLD, Registrar, and received the memorials of the applicant,
Mr P.J. MAHONEY, Deputy Registrar, the Cypriot
Having deliberated in private on 24 Government and the Turkish Government
October 1995, 24 January and 28 on 29 June, 17 July and 18 July 1995
November 1996, respectively. In a letter of
Delivers the following judgment on the 2 August the Deputy to the Secretary to
merits, which was adopted on the last- the Commission informed the Registrar
mentioned date: that the Delegate would
31/03/2009 ECHR Portal HTML View present his observations at the hearing.
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4. On 13 September 1995 the
PROCEDURE Commission, the applicant and the
1. The case was referred to the Court by Cypriot and Turkish Governments
the Government of the Republic of submitted their observations on the
Cyprus ("the Cypriot question of reference in the proceedings
Government") on 9 November 1993, before the Court to a
within the three-month period laid down confidential report of the European
by Article 32 para. 1 and Commission of Human Rights in the case
Article 47 (art. 32-1, art. 47) of the of Chrysostomos and
Convention for the Protection of Human Papachrysostomou v. Turkey which was
Rights and Fundamental then pending before the Committee of
Freedoms ("the Convention"). It Ministers of the Council of
originated in an application (no. Europe, as requested by the President in a
15318/89) against the Republic of letter of 8 September.
Turkey ("the Turkish Government") 5. In accordance with the President’s
lodged with the European Commission of decision, the hearing on the merits took
Human Rights ("the place in public in the
Commission") under Article 25 (art. 25)
on 22 July 1989 by a Cypriot national,
Mrs Titina Loizidou.
Human Rights Building, Strasbourg, on Judge Macdonald’s above-mentioned
25 September 1995. The Court had held a decision to withdraw.
preparatory meeting 8. On 6 October 1995, the Cypriot
beforehand. Government submitted various court
There appeared before the Court: decisions to which reference
- for the Turkish Government had been made at the public hearing.
Mr B. ÇAGLAR, Agent, 9. Following the publication by the
Mr T. ÖZKAROL, Committee of Ministers of the
Mr E. APAKAN, Commission’s report in
Mr H. GOLSONG, Chrysostomos and Papachrysostomou v.
Mrs D. AKÇAY, Turkey, the President requested, by letter
Mr Ö. KORAY, of 19 October 1995,
Mr Z. NECATIGIL, Counsel; the applicant and the Government of
- for the Cypriot Government Cyprus to submit any comments they
Mr A. MARKIDES, Attorney-General, wished to make. On 6
Agent, November, they filed supplementary
Mr M. TRIANTAFYLLIDES, Barrister-at- observations. On 23 November the
Law, Turkish Government submitted a
Mr M. SHAW, Barrister-at-Law, reply.
Mrs T. POLYCHRONIDOU, Counsel of the 10. On 3 November 1995 the Turkish
Republic A’, Government submitted an article to which
31/03/2009 ECHR Portal HTML View reference had been
made at the public hearing.
Mrs S.M. JOANNIDES, Counsel of the
Republic A’, Counsel,
AS TO THE FACTS
Mr P. POLYVIOU, Barrister-at-Law, Particular circumstances of the case
Mrs C. PALLEY, Consultant to 11. The applicant, a Cypriot national,
the Ministry of Foreign Affairs, grew up in Kyrenia in northern Cyprus. In
Mr N. EMILIOU, Consultant 1972 she married and
to the Ministry of Foreign Affairs, moved with her husband to Nicosia.
Advisers; 12. She claims to be the owner of plots of
- for the Commission land nos. 4609, 4610, 4618, 4619, 4748,
Mr S. TRECHSEL, Delegate; 4884, 5002,
- for the applicant 5004, 5386 and 5390 in Kyrenia in
Mr A. DEMETRIADES, Barrister-at-Law, northern Cyprus and she alleges that prior
Mr I. BROWNLIE QC, to the Turkish occupation
Ms J. LOIZIDOU, Barrister-at-Law, of northern Cyprus on 20 July 1974, work
Counsel. had commenced on plot no. 5390 for the
The Court heard addresses by Mr construction of flats,
Trechsel, Mr Demetriades, Mr Brownlie, one of which was intended as a home for
Mr Markides, Mr Shaw, her family. Her ownership of the
Mr Çaglar, Mrs Akçay, Mr Necatigil and properties is attested by
Mr Golsong, and also replies to its certificates of registration issued by the
questions. Cypriot Lands and Surveys Department at
6. On 26 September 1995, Mr Macdonald the moment of
decided, pursuant to Rule 24 para. 3 of acquisition.
Rules of Court She states that she has been prevented in
A, to withdraw from the Grand Chamber. the past, and is still prevented, by Turkish
In accordance with this Rule he informed forces from
the President who returning to Kyrenia and "peacefully
exempted him from sitting. enjoying" her property.
7. On 27 September 1995, the President 13. On 19 March 1989 the applicant
received a request from the Turkish participated in a march organised by a
Government that Judge women’s group ("Women
Macdonald withdraw from the Chamber. Walk Home" movement) in the village of
The Court decided that no response was Lymbia near the Turkish village of
called for in the light of Akincilar in the occupied area
of northern Cyprus. The aim of the march soldiers opposed the demonstrators and, thanks
was to assert the right of Greek Cypriot largely to the manner in which they and the Turkish
Cypriot police
refugees to return to dealt with the situation, the demonstration passed
31/03/2009 ECHR Portal HTML View without serious incident. Altogether, 54
cmiskp.echr.coe.int/tkp197/view.asp?… 3/30 demonstrators were
of northern Cyprus. The aim of the march arrested by Turkish Cypriot police in the two
was to assert the right of Greek Cypriot locations; they were released to UNFICYP later the
refugees to return to same day."
their homes. A. Turkish military presence in
Leading a group of fifty marchers she (orthern Cyprus
advanced up a hill towards the Church of 16. Turkish armed forces of more than
the Holy Cross in the 30,000 personnel are stationed throughout
Turkish-occupied part of Cyprus passing the whole of the
the United Nations’ guard post on the occupied area of northern Cyprus, which
way. When they reached is constantly patrolled and has
the churchyard they were surrounded by checkpoints on all main lines of
Turkish soldiers and prevented from communication. The army’s headquarters
moving any further. are in Kyrenia. The 28th Infantry Division
14. She was eventually detained by is based in Asha
members of the Turkish Cypriot police (Assia) with its sector covering
force and brought by Famagusta to the Mia Milia suburb of
ambulance to Nicosia. She was released Nicosia and with about 14,500
around midnight, having been detained personnel. The 39th Infantry Division,
for more than ten hours. with about 15,500 personnel, is based at
15. In his report of 31 May 1989 (Security Myrtou village, and its
Council document S/20663) on the sector ranges from Yerolakkos village to
United Nations Lefka. TOURDYK (Turkish Forces in
Operation in Cyprus (for the period 1 Cyprus under the Treaty
December 1988 - 31 May 1989) the of Guarantee) is stationed at Orta Keuy
Secretary-General of the village near Nicosia, with a sector running
United Nations described the from Nicosia
demonstration of 19 March 1989 as International Airport to the Pedhieos
follows (at paragraph 11): River. A Turkish naval command and
"In March 1989, considerable tension occurred over outpost are based at
the well-publicized plans of a Greek Cypriot Famagusta and Kyrenia respectively.
women’s group Turkish airforce personnel are based at
to organize a large demonstration with the
announced intention of crossing the Turkish forces Lefkoniko, Krini and other
cease-fire line. In airfields. The Turkish airforce is stationed
this connection it is relevant to recall that, following on the Turkish mainland at Adana.
violent demonstrations in the United Nations 17. The Turkish forces and all civilians
buffer-zone in
November 1988, the Government of Cyprus had
entering military areas are subject to
given assurances that it would in future do whatever Turkish military courts, as
was stipulated so far as concerns "TRNC
necessary to ensure respect for the buffer-zone ... citizens" by the Prohibited Military Areas
Accordingly, UNFICYP asked the Government to
Decree of 1979 (section 9)
take effective
action to prevent any demonstrators from entering and Article 156 of the Constitution of the
the buffer-zone, bearing in mind that such entry "TRNC".
would lead to a B. Article 159 (1) (b) of the "TR(C"
situation that might be difficult to control. The Constitution
demonstration took place on 19 March 1989. An
estimated 2,000 18. Article 159 (1) (b) of the 7 May 1985
women crossed the buffer-zone at Lymbia and some Constitution of the "Turkish Republic of
managed to cross the Turkish forces’ line. A smaller Northern Cyprus"
group (the "TRNC") provides, where relevant,
crossed that line at Akhna. At Lymbia, a large
number of Turkish Cypriot women arrived shortly as follows:
after the Greek "All immovable properties, buildings and
Cypriots and mounted a counter demonstration, installations which were found abandoned on 13
remaining however on their side of the line. February 1975 when
Unarmed Turkish
the Turkish Federated State of Cyprus was 21. In November 1983, the Committee of
proclaimed or which were considered by law as Ministers of the Council of Europe
abandoned or
ownerless after the above-mentioned date, or which decided that it continued
should have been in the possession or control of the to regard the Government of the Republic
public of Cyprus as the sole legitimate
even though their ownership had not yet been Government of Cyprus and
determined ... and ... situated within the boundaries
of the TRNC on called for the respect of the sovereignty,
15 November 1983, shall be the property of the independence, territorial integrity and
TRNC notwithstanding the fact that they are not so unity of the Republic of
registered in Cyprus.
the books of the Land Registry Office; and the Land
Registry Office shall be amended accordingly." 22. On 16 November 1983 the European
31/03/2009 ECHR Portal HTML View Communities issued the following
cmiskp.echr.coe.int/tkp197/view.asp?… 4/30 statement:
the books of the Land Registry Office; and the Land "The ten Member States of the European
Registry Office shall be amended accordingly." Community are deeply concerned by the declaration
C. The international response to the purporting to
establishment of the "TR(C" establish a ‘Turkish Republic of Northern Cyprus’
as an independent State. They reject this
19. On 18 November 1983, in response to declaration, which is in
the proclamation of the establishment of disregard of successive resolutions of the United
the "TRNC", the Nations. The Ten reiterate their unconditional
United Nations Security Council adopted support for the
independence, sovereignty, territorial integrity and
Resolution 541 (1983) which provides,
unity of the Republic of Cyprus. They continue to
where relevant, as regard the
follows: Government of President Kyprianou as the sole
"The Security Council ... legitimate Government of the Republic of Cyprus.
1. Deplores the declaration of the Turkish Cypriot They call upon
authorities of the purported secession of part of the all interested parties not to recognize this act, which
Republic creates a very serious situation in the area."
of Cyprus; 23. The Commonwealth Heads of
2. Considers the declaration ... as legally invalid and
Government, meeting in New Delhi from
calls for its withdrawal ...
6. Calls upon all States to respect the sovereignty, 23 to 29 November
independence, territorial integrity and non- 1983, issued a press communiqué stating,
alignment of the inter alia, as follows:
Republic of Cyprus; "[The] Heads of Government condemned the
7. Calls upon all States not to recognise any Cypriot declaration by the Turkish Cypriot authorities
State other than the Republic of Cyprus ..." issued on 15
20. Resolution 550 (1984), adopted on 11 November 1983 to create a secessionist state in
May 1984 in response to the exchange of northern Cyprus, in the area under foreign
"ambassadors" occupation. Fully
endorsing Security Council Resolution 541, they
between Turkey and the "TRNC" stated, denounced the declaration as legally invalid and
inter alia: reiterated the call
"The Security Council ... for its non-recognition and immediate withdrawal.
1. Reaffirms its Resolution 541 (1983) and calls for They further called upon all States not to facilitate
its urgent and effective implementation; or in any way
2. Condemns all secessionist actions, including the assist the illegal secessionist entity. They regarded
purported exchange of ambassadors between this illegal act as a challenge to the international
Turkey and the community
Turkish Cypriot leadership, declares them illegal and demanded the implementation of the relevant
and invalid and calls for their immediate UN Resolutions on Cyprus."
withdrawal; D. The Turkish declaration of 22
3. Reiterates the call upon all States not to recognise
the purported State of the "Turkish Republic of
January 1990 under Article 46 of the
Northern Convention (art. 46)
Cyprus" set up by secessionist acts and calls upon 31/03/2009 ECHR Portal HTML View
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aforesaid 24. On 22 January 1990, the Turkish
secessionist entity; Minister for Foreign Affairs deposited the
4. Calls upon all States to respect the sovereignty, following declaration
independence, territorial integrity, unity and non-
alignment of with the Secretary General of the Council
the Republic of Cyprus ..." of Europe pursuant to Article 46 of the
Convention (art. 46):
"On behalf of the Government of the Republic of latter two provisions (art. 8, P1-1) of a
Turkey and acting in accordance with Article 46 continuing violation of her property rights
(art. 46) of the
European Convention for the Protection of Human before 29 January 1987
Rights and Fundamental Freedoms, I hereby declare was declared inadmissible.
as follows: In its report of 8 July 1993 (Article 31)
The Government of the Republic of Turkey acting (art. 31), it expressed the opinion that
in accordance with Article 46 (art. 46) of the
European there had been no
Convention for the Protection of Human Rights and violation of Article 3 (art. 3)
Fundamental Freedoms, hereby recognises as (unanimously); Article 8 (art. 8) as
compulsory regards the applicant’s private life (eleven
ipso facto and without special agreement the
jurisdiction of the European Court of Human Rights votes to two); Article 5 para. 1 (art. 5-1)
in all matters (nine votes to four); Article 8 (art. 8) as
concerning the interpretation and application of the regards the applicant’s
Convention which relate to the exercise of home (nine votes to four) and Article 1 of
jurisdiction within
the meaning of Article 1 of the Convention (art. 1),
Protocol No. 1 (P1-1) (eight votes to five).
performed within the boundaries of the national The full text of the
territory of the Commission’s opinion and of the three
Republic of Turkey, and provided further that such separate opinions contained in the report
matters have previously been examined by the
Commission
is reproduced as an
within the power conferred upon it by Turkey. annex to the Loizidou v. Turkey
This Declaration is made on condition of judgment of 23 March 1995 (preliminary
reciprocity, including reciprocity of obligations objections), Series A no. 310.
assumed under the
Convention. It is valid for a period of 3 years as FINAL SUBMISSIONS TO THE
from the date of its deposit and extends to matters COURT
raised in respect 28. In her memorial, the applicant
of facts, including judgments which are based on
such facts which have occurred subsequent to the
requested the Court to decide and declare:
date of 1. that the respondent State is responsible
deposit of the present Declaration." for the continuing violations of Article 1
25. The above declaration was renewed of Protocol No. 1
for a period of three years as from 22 (P1-1);
January 1993 in 2. that the respondent State is responsible
substantially the same terms. for the continuing violations of Article 8
PROCEEDINGS BEFORE THE (art. 8);
COMMISSION 3. that the respondent State is under a duty
26. Mrs Loizidou lodged her application to provide just satisfaction in accordance
(no. 15318/89) on 22 July 1989. She with the
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complained that her cmiskp.echr.coe.int/tkp197/view.asp?… 6/30
arrest and detention involved violations of provisions of Article 50 of the
Articles 3, 5 and 8 of the Convention (art. Convention (art. 50); and
3, art. 5, art. 8). She 4. that the respondent State is under a duty
further complained that the refusal of to permit the applicant to exercise her
access to her property constituted a rights, in accordance
continuing violation of Article 8 with the findings of violations of the
of the Convention (art. 8) and Article 1 of Protocol and Convention, freely in the
Protocol No. 1 (P1-1). future.
27. On 4 March 1991 the Commission 29. The Cypriot Government submitted
declared the applicant’s complaints that:
admissible in so far as they 1. the Court has jurisdiction ratione
raised issues under Articles 3, 5 and 8 (art. temporis to deal with the applicant’s case
3, art. 5, art. 8) in respect of her arrest and because Turkey’s
detention and declaration under Article 46 of the
Article 8 and Article 1 of Protocol No. 1 Convention (art. 46) did not clearly
(art. 8, P1-1) concerning continuing exclude competence in respect of
violations of her right of violations examined by the Commission
access to property alleged to have after the Turkish declaration of 22
occurred subsequent to 29 January 1987. January 1990. Turkey is thus
Her complaint under the
liable for the continuing violations 32. The Court recalls its findings in the
complained of by the applicant in the preliminary objections judgment in the
period since 28 January 1987; present case that it is
2. in any event Turkey is liable for those open to Contracting Parties under Article
violations continuing in the period since 46 of the Convention (art. 46) to limit, as
22 January 1990 and Turkey has done in its
which have been examined by the declaration of 22 January 1990, the
Commission; acceptance of the jurisdiction of the Court
3. there is a permanent state of affairs, still to facts which occur
continuing, in the Turkish-occupied area, subsequent to the time of deposit and that,
which is in consequently, the Court’s jurisdiction
violation of the applicant’s rights under only extends to the
Article 8 of the Convention (art. 8) and applicant’s allegation of a continuing
Article 1 of Protocol No. 1 violation of her property rights
(P1-1). subsequent to 22 January 1990. It
30. In their memorial, the Turkish must now examine that allegation since in
Government made the following the above-mentioned judgment it decided
submissions: to join the questions
1. the applicant was irreversibly deprived raised by the objection ratione temporis to
of her property situated in northern the merits (see the Loizidou v. Turkey
Cyprus by an act of the judgment of 23 March
"Government of the Turkish Republic of 1995 (preliminary objections), Series A
Northern Cyprus", on 7 May 1985, at the no. 310, pp. 33-34, paras. 102-05).
latest; A. The wording of the Article 46
2. the act referred to under (1) above does declaration (art. 46)
not constitute an act of "jurisdiction" by 31/03/2009 ECHR Portal HTML View
Turkey within the
33. In their memorial on the merits, the
meaning of Article 1 of the Convention
Cypriot Government submitted that
(art. 1);
Turkey’s Article 46 (art.
3. Turkey has not violated the rights of the
46) declaration was ambiguously worded.
applicant under Article 8 of the
The absence of a comma in the final
Convention (art. 8).
sentence after the word
AS TO THE LAW "facts", where it occurs for the second
31. The applicant and the Cypriot time, made it unclear whether the words
Government maintained that ever since "which have occurred
the Turkish occupation of subsequent to the date of deposit"
northern Cyprus the applicant had been qualified "facts" (when first used) or
denied access to her property and had, "judgments" (see paragraph 24
consequently, lost all above). The same observation was made
control over it. In their submission this as regards the Government’s Article 25
constituted a continued and unjustified (art. 25) declarations. In
interference with her right to their submission, all Convention
the peaceful enjoyment of property in enforcement organs, which have
breach of Article 1 of Protocol No. 1 (P1- jurisdiction conferred upon them, enjoy
1) as well as a continuing jurisdiction retroactively to the time of
violation of the right to respect for her ratification of the Convention unless there
home under Article 8 of the Convention has been an express and
(art. 8). unambiguously worded restriction ratione
The Turkish Government contested this temporis. However, the latter
allegation and maintained primarily that requirement, they claimed, was
the Court lacked not satisfied in the present case.
jurisdiction ratione temporis to examine 34. The Court sees no merit in this
it. argument. In its view the reading of the
I. THE GOVERNMENT’S present text in the manner
PRELIMINARY OBJECTION contended by the Cypriot Government
would render the last sentence of the
declaration almost
unintelligible. It considers that the Furthermore, in finding that the arrest and
intention of the Turkish Government to detention of the applicants in the case of
exclude from the Court’s Chrysostomos and
jurisdiction all matters raised in respect of Papachrysostomou v. Turkey were
facts which occurred prior to the date of lawful, the Commission and subsequently
deposit of the Article the Committee of Ministers
46 (art. 46) declaration is sufficiently of the Council of Europe had recognised
evident from the words used in the last as valid the relevant laws of the "TRNC"
sentence and can be (see report of the
reasonably inferred from them. Commission of 8 July 1993, paras. 143-
Moreover, it notes that the Commission 70 and Resolution DH (95) 245 of 19
has construed in a similar fashion October 1995).
identical language and punctuation in In the Turkish Government’s submission,
Turkey’s Article 25 (art. 25) declarations the applicant had thus definitively lost
(see the decision of ownership of the land
admissibility in applications nos. well before the crucial date of 22 January
15299/89, 15300/89 and 15318/89 1990, i.e. on 7 May 1985 at the latest. The
(joined), Chrysostomos, judgment of the
Papachrysostomou and Loizidou v. Court in the Papamichalopoulos and
Turkey, 4 March 1991, Decisions and Others v. Greece case (of 24 June 1993,
Reports (DR) 68, pp. 250- Series A no. 260-B),
51, paras. 50-60). where the Court had found that there had
B. Further arguments of those been a continuing interference with the
appearing before the Court applicant’s property
35. The Turkish Government, for their rights, was moreover distinguishable on
part, contended that the process of the the ground that the Greek Government
"taking" of property in had not raised any
northern Cyprus started in 1974 and objection ratione temporis in that case.
ripened into an irreversible expropriation It followed, in their submission, that the
by virtue of Article 159 (1) Court was concerned in the present case
(b) of the "TRNC" Constitution of 7 May with an instantaneous
1985 (see paragraph 18 above) justified act which predated the Government’s
under the internationallaw acceptance of the Court’s jurisdiction
doctrine of necessity. In this context they under Article 46 (art. 46). It
contended that the "TRNC" is a was thus incompetent ratione temporis to
democratic and examine the applicant’s complaints.
constitutional state whose Constitution 31/03/2009 ECHR Portal HTML View
was accepted by a referendum. Following
36. The applicant, whose submissions
a process of political
were endorsed by the Government of
and administrative evolution, the
Cyprus, maintained that
"TRNC" was established by the Turkish
the fact that she had been denied access to
Cypriot people in pursuance of
her property ever since 1974 and,
their right to self-determination and thus
consequently, had lost all
was able to make valid law. Moreover, the
control over it constituted a continuing
effectual and
violation of her rights and that the
autonomous nature of the administration
jurisprudence of the Convention
in the northern part of Cyprus had been
institutions and other international
recognised in various
tribunals recognised this concept. She
court decisions in the United Kingdom
stressed that the rules of
(Hesperides Hotels Ltd and Another v.
international law must be taken into
Aegean Turkish Holidays
account when interpreting the Convention
Ltd and Another [1977] 3 Weekly Law
and contended that the
Reports 656 (Court of Appeal) and Polly
1985 Constitution of the "TRNC" was - as
Peck International
was recognised by the international
PLC v. Asil Nadir and Others [1992] 2 All
community - invalid under
England Reports 238 (Court of Appeal)).
international law, because its origin lay in Commission.
the illegal use of force by Turkey. A C. The Court’s assessment
second reason was that the 39. The Court first observes, as regards
policy of the Turkish authorities was the estoppel submission, that in principle
based upon racial discrimination in it is not prevented in
breach of Article 14 of the its examination of the merits of a
Convention (art. 14) and of customary complaint from having regard to new
international law. Accordingly, no effect facts, supplementing and clarifying
should be given to the those established by the Commission, if it
confiscatory provisions of the 1985 considers them to be of relevance (see the
Constitution. McMichael v. the
37. In the submission of the Government United Kingdom judgment of 24
of Cyprus, the denial of peaceful February 1995, Series A no. 307-B, p. 51,
enjoyment of the para. 73, and the Gustafsson
possessions of Greek Cypriots in the v. Sweden judgment of 25 April 1996,
occupied area has been effected by a Reports of Judgments and Decisions
systematic and continuing 1996-II, p. 655, para. 51).
process. They denied, however, that this 40. Although in the present case the
process had amounted to loss of objection ratione temporis was raised by
ownership. Evidence for this the Turkish Government
contention was provided by the in the proceedings before the
Settlement and Distribution of Land and Commission, there was no discussion or
Property of Equivalent Value analysis in its admissibility decision
Law of 28 August 1995 which, according of 4 March 1991 as to whether the matters
to the Government, purports to extend complained of involved a continuing
what were hitherto situation or an
limited permits to occupy Greek property instantaneous act. This point, although
and by the fact that Turkey alleged that touched on to some extent before the
there had been no Court at the preliminary
confiscation of Greek property in objections phase, was the subject of
northern Cyprus in a memorial circulated detailed submissions only in the
within the Committee of proceedings on the merits, the new
Ministers in 1987. information being mentioned for the first
38. As explained by the Commission’s time in the Turkish Government’s written
Delegate at the hearing on the preliminary memorial but also in the
objections, the appendices to the Cypriot Government’s
Commission also considered that the memorial. Against this background, the
applicant’s complaints under Article 1 of plea of estoppel must
Protocol No. 1 (P1-1) and fail.
Article 8 of the Convention (art. 8) 41. The Court recalls that it has endorsed
concerned violations which were the notion of a continuing violation of the
essentially of a continuing nature. In Convention and its
his written observations on the effects as to temporal limitations of the
preliminary objections, the Delegate had competence of Convention organs (see,
therefore taken the view that the inter alia, the
Court has competence to deal with these Papamichalopoulos and Others v. Greece
complaints as far as they involved the judgment of 24 June 1993, Series A no.
period after 22 January 260-B, pp. 69-70,
1990. Moreover, at the hearing on the paras. 40 and 46, and the Agrotexim and
merits the Delegate, with the endorsement Others v. Greece judgment of 24 October
of the applicant, asked 1995, Series A no.
the Court to consider whether Turkey 31/03/2009 ECHR Portal HTML View
should be estopped from introducing new
paras. 40 and 46, and the Agrotexim and
facts relating to the
Others v. Greece judgment of 24 October
provisions of the 1985 Constitution which
1995, Series A no.
had not been referred to during the
330-A, p. 22, para. 58).
proceedings before the
Accordingly, the present case concerns of the Republic of Cyprus in the context
alleged violations of a continuing nature of diplomatic and treaty relations and the
if the applicant, for working of international
purposes of Article 1 of Protocol No. 1 organisations (see the Commission’s
(P1-1) and Article 8 of the Convention decisions on the admissibility of
(art. 8), can still be applications nos. 6780/74 and
regarded - as remains to be examined by 6950/75, Cyprus v. Turkey, 26 May 1975,
the Court - as the legal owner of the land. DR 2, pp. 135-36; no. 8007/77, Cyprus v.
42. The Court has had regard to the Turkey, 10 July
Turkish Government’s allegation that 1978, DR 13, p. 146).
"the process of ‘the taking’ 43. It is recalled that the Convention must
of property in northern Cyprus started in be interpreted in the light of the rules of
1974 and ripened into an irreversible interpretation set out
expropriation by virtue of in the Vienna Convention of 23 May 1969
Article 159 of the ‘TRNC’ Constitution of on the Law of Treaties and that Article 31
7 May 1985" (see paragraph 35 above). para. 3 (c) of that
The formulation of treaty indicates that account is to be taken
this assertion suggests that in the Turkish of "any relevant rules of international law
Government’s view the applicant had not applicable in the
lost ownership of the relations between the parties" (see, inter
land before 7 May 1985; if it should be alia, the Golder v. the United Kingdom
understood differently, the Turkish judgment of 21 February
Government have failed to 1975, Series A no. 18, p. 14, para. 29, the
clarify in what manner the loss of Johnston and Others v. Ireland judgment
ownership occurred before that date. The of 18 December
Court will therefore 1986, Series A no. 112, p. 24, para. 51,
concentrate on the Government’s and the above-mentioned Loizidou
submission that ownership was lost in judgment (preliminary
1985 as a result of the operation objections), p. 27, para. 73).
of Article 159 of the "TRNC" In the Court’s view, the principles
Constitution (see paragraph 18 above). underlying the Convention cannot be
In this context the Court takes note of interpreted and applied in a
United Nations Security Council vacuum. Mindful of the Convention’s
Resolution 541 (1983) special character as a human rights treaty,
declaring the proclamation of the it must also take into
establishment of the "TRNC" as legally account any relevant rules of international
invalid and calling upon all States law when deciding on disputes
not to recognise any Cypriot State other concerning its jurisdiction
than the Republic of Cyprus. A similar pursuant to Article 49 of the Convention
call was reiterated by the (art. 49).
Security Council in Resolution 550 44. In this respect it is evident from
(adopted on 11 May 1984). In November international practice and the various,
1983 the Committee of strongly worded resolutions
Ministers of the Council of Europe also referred to above (see paragraph 42) that
condemned the proclamation of statehood the international community does not
and called upon all regard the "TRNC" as a
States to deny recognition to the "TRNC" State under international law and that the
(see paragraphs 19-21 above). A position Republic of Cyprus has remained the sole
to similar effect was legitimate Government
taken by the European Community and of Cyprus - itself, bound to respect
the Commonwealth Heads of international standards in the field of the
Government (see paragraphs 22-23 protection of human and
above). Moreover it is only the Cypriot minority rights. Against this background
Government which is recognised the Court cannot attribute legal validity
internationally as the Government for purposes of the
Convention to such provisions as Article II. ALLEGED VIOLATION OF
159 of the fundamental law on which the ARTICLE 1 OF PROTOCOL No. 1 (P1-
Turkish Government 1)
rely. 48. The applicant contended that the
45. The Court confines itself to the above continuous denial of access to her
conclusion and does not consider it property in northern Cyprus
desirable, let alone and the ensuing loss of all control over it
necessary, in the present context to are imputable to the Turkish Government
elaborate a general theory concerning the and constitute a
lawfulness of legislative and violation of Article 1 of Protocol No. 1
administrative acts of the "TRNC". It (P1-1), which reads as follows:
notes, however, that international law "Every natural or legal person is entitled to the
recognises the legitimacy of peaceful enjoyment of his possessions. No one shall
be deprived
certain legal arrangements and of his possessions except in the public interest and
transactions in such a situation, for subject to the conditions provided for by law and by
instance as regards the registration of the
31/03/2009 ECHR Portal HTML View general principles of international law.
cmiskp.echr.coe.int/tkp197/view.asp?… 10/30 The preceding provisions (P1-1) shall not, however,
certain legal arrangements and in any way impair the right of a State to enforce such
laws as
transactions in such a situation, for it deems necessary to control the use of property in
instance as regards the registration of accordance with the general interest or to secure the
births, deaths and marriages, "the effects payment
of which can be ignored only to the of taxes or other contributions or penalties."
detriment of the inhabitants of A. The imputability issue
the [t]erritory" (see, in this context, 49. The applicant insisted, in line with her
Advisory Opinion on Legal submissions concerning the preliminary
Consequences for States of the Continued objection ratione
Presence of South Africa in Namibia materiae (Loizidou judgment
(South West Africa) Notwithstanding (preliminary objections) cited above at
Security Council Resolution paragraph 32, pp. 22-23, paras. 57-
276 (1970), [1971] International Court of 58), that the present case was exceptional
Justice Reports 16, p. 56, para. 125). in that the authorities alleged to have
46. Accordingly, the applicant cannot be interfered with the right to
deemed to have lost title to her property the peaceful enjoyment of possessions are
as a result of Article not those of the sole legitimate
159 of the 1985 Constitution of the Government of the territory in
"TRNC". No other facts entailing loss of which the property is situated. That
title to the applicant’s particularity entailed that, in order to
properties have been advanced by the determine whether Turkey is
Turkish Government nor found by the responsible for the alleged violation of
Court. In this context the her rights under Article 1 of Protocol No.
Court notes that the legitimate 1 (P1-1) with respect to
Government of Cyprus have consistently her possessions in northern Cyprus, the
asserted their position that Greek Court should take into account the
Cypriot owners of immovable property in principles of State
the northern part of Cyprus such as the responsibility under international law. In
applicant have retained this context Mrs Loizidou repeated her
their title and should be allowed to resume criticism that the
free use of their possessions, whilst the Commission had focused too much on the
applicant obviously has direct involvement of Turkish officials in
taken a similar stance. the impugned
47. It follows that the applicant, for the continuous denial of access. Whilst
purposes of Article 1 of Protocol No. 1 evidence of direct involvement of Turkish
(P1-1) and Article 8 officials in violations of the
of the Convention (art. 8), must still be Convention is relevant, it is not a legal
regarded to be the legal owner of the land. condition of responsibility under public
The objection ratione international law.
temporis therefore fails.
She went on to contend that the concept the present case, had found Turkey to
of State responsibility rested on a realistic have jurisdiction created a strong
notion of presumption of Turkish
accountability. A State was responsible in responsibility for violations occurring in
respect of events in the area for which it the occupied area.
is internationally 50. According to the Cypriot
responsible, even if the conduct or events Government, Turkey is in effective
were outside its actual control. Thus, even military and political control of
acts of officials which northern Cyprus. It cannot escape from its
are ultra vires may generate State duties under international law by
responsibility. pretending to hand over the
According to international law, in the administration of northern Cyprus to an
applicant’s submission, the State which is unlawful "puppet" regime.
recognised as 51. The Turkish Government denied that
accountable in respect of a particular they had jurisdiction in northern Cyprus
territory remained accountable even if the within the meaning of
territory is administered by Article 1 of the Convention (art. 1). In the
31/03/2009 ECHR Portal HTML View first place they recalled the earlier case-
law of the Commission
accountable in respect of a particular
which limited the jurisdiction of Turkey
territory remained accountable even if the
"to the border area and not to the whole of
territory is administered by
northern Cyprus under
a local administration. This was the legal
the control of the Turkish Cypriot
position whether the local administration
authorities" (see the Commission’s
is illegal, in that it is the
decisions on the admissibility of
consequence of an illegal use of force, or
applications nos. 6780/74, 6950/75 and
whether it is lawful, as in the case of a
8007/77, cited in paragraph 42 above). In
protected State or other
the second place, the
dependency. A State cannot by delegation
presumption of control and responsibility
avoid responsibility for breaches of its
argued for by the applicants was
duties under
rebuttable. In this respect it was
international law, especially not for
highly significant that the Commission in
breaches of its duties under the
the Chrysostomos and Papachrysostomou
Convention which, as illustrated by the
v. Turkey report of 8
wording of Article 1 of the Convention
July 1993 found that the applicants’
(art. 1), involve a guarantee to secure
arrest, detention and trial in northern
Convention rights.
Cyprus were not "acts"
Mrs Loizidou maintained that the
imputable to Turkey. Moreover, the
creation of the "TRNC" was legally
Commission found no indication of
invalid and no State, except
control exercised by the Turkish
Turkey, or international organisation has
authorities over the prison administration
recognised it. Since the Republic of
or the administration of justice by Turkish
Cyprus obviously cannot be
Cypriot authorities in
held accountable for the part of the island
the applicant’s case (cited above at
occupied by Turkey, it must be Turkey
paragraph 32).
which is so accountable.
In addition, the Turkish Government
Otherwise the northern part of Cyprus
contended that the question of jurisdiction
would constitute a vacuum as regards
in Article 1 of the
responsibility for violations of
Convention (art. 1) is not identical with
human rights, the acceptance of which
the question of State responsibility under
would be contrary to the principle of
international law. Article
effectiveness which underlies
1 (art. 1) was not couched in terms of
the Convention. In any case there is
State responsibility. In their submission
overwhelming evidence that Turkey has
this provision (art. 1)
effective overall control over
required proof that the act complained of
events in the occupied area. She added
was actually committed by an authority of
that the fact that the Court, at the
the defendant State or
preliminary objections phase of
occurred under its direct control and that restricted to the national territory of the
this authority at the time of the alleged Contracting States. Accordingly, the
violation exercised responsibility of Contracting
effective jurisdiction over the applicant. States can be involved by acts and
Furthermore they argued that seen from omissions of their authorities which
this angle, Turkey had not in this case produce effects outside their own
exercised effective territory. Of particular significance to the
control and jurisdiction over the applicant present case the Court held, in conformity
since at the critical date of 22 January with the relevant
1990 the authorities of principles of international law governing
the Turkish Cypriot community, State responsibility, that the responsibility
constitutionally organised within the of a Contracting Party
"TRNC" and in no way exercising could also arise when as a consequence of
jurisdiction on behalf of Turkey, were in military action - whether lawful or
control of the property rights of the unlawful - it exercises
applicant. effective control of an area outside its
In this context they again emphasised that national territory. The obligation to
the "TRNC" is a democratic and secure, in such an area, the rights
constitutional State which is and freedoms set out in the Convention,
politically independent of all other derives from the fact of such control
sovereign States including Turkey. The whether it be exercised
administration in northern directly, through its armed forces, or
Cyprus has been set up by the Turkish through a subordinate local
Cypriot people in the exercise of its right administration (see the above-mentioned
to self-determination and Loizidou judgment (preliminary
not by Turkey. Moreover, the Turkish objections), ibid.).
forces in northern Cyprus are there for the 53. In the second place, the Court
protection of the Turkish emphasises that it will concentrate on the
Cypriots and with the consent of the issues raised in the
ruling authority of the "TRNC". Neither present case, without, however, losing
the Turkish forces nor the sight of the general context.
Turkish Government in any way exercise 54. It is important for the Court’s
governmental authority in northern assessment of the imputability issue that
Cyprus. Furthermore, in the Turkish Government
assessing the independence of the have acknowledged that the applicant’s
"TRNC" it must also be borne in mind loss of control of her property stems from
that there are political parties as the occupation of the
well as democratic elections in northern northern part of Cyprus by Turkish troops
Cyprus and that the Constitution was and the establishment there of the
drafted by a constituent "TRNC" (see the abovementioned
31/03/2009 ECHR Portal HTML View preliminary objections judgment, p. 24,
para. 63). Furthermore, it has not been
well as democratic elections in northern
disputed that
Cyprus and that the Constitution was
the applicant has on several occasions
drafted by a constituent
been prevented by Turkish troops from
assembly and adopted by way of
gaining access to her
referendum.
property (see paragraphs 12-13 above).
52. As regards the question of
However, throughout the proceedings the
imputability, the Court recalls in the first
Turkish Government have denied State
place that in its abovementioned
responsibility for the
Loizidou judgment (preliminary
matters complained of, maintaining that
objections) (pp. 23-24, para. 62) it
its armed forces are acting exclusively in
stressed that under its
conjunction with and on
established case-law the concept of
behalf of the allegedly independent and
"jurisdiction" under Article 1 of the
autonomous "TRNC" authorities.
Convention (art. 1) is not
55. The Court recalls that under the policies and actions of the "TRNC" (see
scheme of the Convention the paragraph 52 above). Those affected by
establishment and verification of the such policies or actions
facts is primarily a matter for the therefore come within the "jurisdiction"
Commission (Articles 28 para. 1 and 31) of Turkey for the purposes of Article 1 of
(art. 28-1, art. 31). It is not, the Convention (art. 1).
however, bound by the Commission’s 31/03/2009 ECHR Portal HTML View
findings of fact and remains free to make
therefore come within the "jurisdiction"
its own appreciation in the
of Turkey for the purposes of Article 1 of
light of all the material before it (see, inter
the Convention (art. 1).
alia, the Cruz Varas and Others v. Sweden
Her obligation to secure to the applicant
judgment of 20
the rights and freedoms set out in the
March 1991, Series A no. 201, p. 29, para.
Convention therefore
74, the Klaas v. Germany judgment of 22
extends to the northern part of Cyprus.
September 1993,
In view of this conclusion the Court need
Series A no. 269, p. 17, para. 29, and the
not pronounce itself on the arguments
McCann and Others v. the United
which have been
Kingdom judgment of 27
adduced by those appearing before it
September 1995, Series A no. 324, p. 50,
concerning the alleged lawfulness or
para. 168).
unlawfulness under international
56. The Commission found that the
law of Turkey’s military intervention in
applicant has been and continues to be
the island in 1974 since, as noted above,
denied access to the
the establishment of State
northern part of Cyprus as a result of the
responsibility under the Convention does
presence of Turkish forces in Cyprus
not require such an enquiry (see
which exercise an overall
paragraph 52 above). It suffices
control in the border area (see the report
to recall in this context its finding that the
of the Commission of 8 July 1993, p. 16,
international community considers that
paras. 93-95). The
the Republic of Cyprus is
limited ambit of this finding of "control"
the sole legitimate Government of the
must be seen in the light of the
island and has consistently refused to
Commission’s characterisation of
accept the legitimacy of the
the applicant’s complaint as essentially
"TRNC" as a State within the meaning of
concerning freedom of movement across
international law (see paragraph 44
the buffer-zone (see
above).
paragraphs 59 and 61 below). The Court,
57. It follows from the above
however, must assess the evidence with a
considerations that the continuous denial
view to determining
of the applicant’s access to her
the issue whether the continuous denial of
property in northern Cyprus and the
access to her property and the ensuing
ensuing loss of all control over the
loss of all control over it
property is a matter which falls
is imputable to Turkey.
within Turkey’s "jurisdiction" within the
It is not necessary to determine whether,
meaning of Article 1 (art. 1) and is thus
as the applicant and the Government of
imputable to Turkey.
Cyprus have
suggested, Turkey actually exercises B. Interference with property rights
58. The applicant and the Cypriot
detailed control over the policies and
Government emphasised that, contrary to
actions of the authorities of the
the Commission’s
"TRNC". It is obvious from the large
interpretation, the complaint is not limited
number of troops engaged in active duties
to access to property but is much wider
in northern Cyprus (see
and concerns a factual
paragraph 16 above) that her army
situation: because of the continuous
exercises effective overall control over
denial of access the applicant had
that part of the island. Such
effectively lost all control over, as
control, according to the relevant test and
well as all possibilities to use, to sell, to
in the circumstances of the case, entails
bequeath, to mortgage, to develop and to
her responsibility for the
enjoy her land. This
situation, they contended, could be as being limited to the right to freedom of
assimilated to a de facto expropriation movement. Article 1 of Protocol No. 1
within the meaning of the (P1-1) is thus
Court’s case-law. They denied that there applicable.
had been a formal expropriation, but 62. With respect to the question whether
added that if and in so far Article 1 (P1-1) is violated, the Court first
as there had been attempts at formal recalls its finding
expropriation the relevant enactments that the applicant, for purposes of this
should be disregarded as being Article (P1-1), must be regarded to have
incompatible with international law. remained the legal owner
59. For the Turkish Government and the of the land (see paragraphs 39-47 above).
Commission the case only concerns 63. However, as a consequence of the fact
access to property, and that the applicant has been refused access
the right to the peaceful enjoyment of to the land since
possessions does not include as a 1974, she has effectively lost all control
corollary a right to freedom of over, as well as all possibilities to use and
movement. enjoy, her property.
The Turkish Government further 31/03/2009 ECHR Portal HTML View
submitted that if the applicant was held to
1974, she has effectively lost all control
have absolute freedom of
over, as well as all possibilities to use and
access to her property, irrespective of the
enjoy, her property.
de facto political situation on the island,
The continuous denial of access must
this would undermine
therefore be regarded as an interference
the intercommunal talks, which were the
with her rights under Article
only appropriate way of resolving this
1 of Protocol No. 1 (P1-1). Such an
problem.
interference cannot, in the exceptional
60. The Court first observes from the
circumstances of the present
Commission’s decision on admissibility
case to which the applicant and the
that the applicant’s
Cypriot Government have referred (see
complaint under Article 1 of Protocol No.
paragraphs 49-50 above), be
1 (P1-1) was not limited to the question of
regarded as either a deprivation of
physical access to
property or a control of use within the
her property. Her complaint, as set out in
meaning of the first and second
the application form to the Commission,
paragraphs of Article 1 of Protocol No. 1
was that Turkey, by
(P1-1-1, P1-1-2). However, it clearly falls
refusing her access to property "has
within the meaning
gradually, over the last sixteen years,
of the first sentence of that provision (P1-
affected the right of the applicant
1) as an interference with the peaceful
as a property owner and in particular her
enjoyment of possessions.
right to a peaceful enjoyment of her
In this respect the Court observes that
possessions, thus
hindrance can amount to a violation of the
constituting a continuing violation of
Convention just like a
Article 1 (P1-1)" (see the report of the
legal impediment (see, mutatis mutandis,
Commission of 8 July 1993, p.
the Airey v. Ireland judgment of 9
21, and the decision of admissibility in
October 1979, Series A no.
Chrysostomos, Papachrysostomou and
32, p. 14, para. 25).
Loizidou v. Turkey, DR
64. Apart from a passing reference to the
68, p. 228). Moreover it is this complaint
doctrine of necessity as a justification for
as formulated above that is addressed by
the acts of the
the applicants and the
"TRNC" and to the fact that property
Turkish Government in both their written
rights were the subject of intercommunal
and oral submissions.
talks, the Turkish
61. Seen in the above light, the Court
Government have not sought to make
cannot accept the characterisation of the
submissions justifying the above
applicant’s complaint
interference with the applicant’s
property rights which is imputable to
Turkey.
It has not, however, been explained how which it is planned to build a house for
the need to rehouse displaced Turkish residential purposes. Nor can that term be
Cypriot refugees in the interpreted to cover an
years following the Turkish intervention area of a State where one has grown up
in the island in 1974 could justify the and where the family has its roots but
complete negation of the where one no longer lives.
applicant’s property rights in the form of Accordingly, there has been no
a total and continuous denial of access interference with the applicant’s rights
and a purported under Article 8 (art. 8).
expropriation without compensation. IV. APPLICATION OF ARTICLE 50 OF
Nor can the fact that property rights were THE CONVENTION (art. 50)
the subject of intercommunal talks 67. Article 50 of the Convention (art. 50)
involving both provides as follows:
communities in Cyprus provide a "If the Court finds that a decision or a measure taken
justification for this situation under the by a legal authority or any other authority of a High
Contracting Party is completely or partially in
Convention. conflict with the obligations arising from the ...
In such circumstances, the Court Convention, and if the
concludes that there has been and 31/03/2009 ECHR Portal HTML View
continues to be a breach of Article
Contracting Party is completely or partially in
1 of Protocol No. 1 (P1-1). conflict with the obligations arising from the ...
III. ALLEGED VIOLATION OF Convention, and if the
ARTICLE 8 OF THE CONVENTION internal law of the said Party allows only partial
(art. 8) reparation to be made for the consequences of this
decision or
65. The applicant also alleged an measure, the decision of the Court shall, if
unjustified interference with the right to necessary, afford just satisfaction to the injured
respect for her home in party."
violation of Article 8 of the Convention 68. In her memorial the applicant outlined
(art. 8), paragraph 1 of which (art. 8-1) the following claims under this head: (a)
provides, inter alia, that: compensation for
"Everyone has the right to respect for ... his home pecuniary damage - loss of income from
..." the land since January 1987: 531,900
In this respect she underlined that she had Cyprus pounds; (b)
grown up in Kyrenia where her family compensation for non-pecuniary damage
had lived for - punitive damages to the same amount as
generations and where her father and claimed for pecuniary
grandfather had been respected medical damage; (c) to be allowed to exercise her
practitioners. She conceded rights under Article 1 of Protocol No. 1
that after her marriage in 1972 she had (P1-1) freely in the
moved to Nicosia and had made her home future; and (d) a non-specified amount in
there ever since. respect of costs and expenses.
However, she had planned to live in one In their memorial the Turkish
of the flats whose construction had begun Government have not commented on the
at the time of the issues thus raised. Neither have
Turkish occupation of northern Cyprus in these issues been discussed by those
1974 (see paragraph 12 above). As a appearing before the Court at its hearing
result, it had been on the merits.
impossible to complete the work and 69. Under these circumstances the Court,
subsequent events had prevented her from taking into account the exceptional nature
returning to live in what of the case,
she considered as her home town. considers that the question of the
66. The Court observes that the applicant application of Article 50 (art. 50) is not
did not have her home on the land in ready for decision. The question
question. In its opinion must accordingly be reserved and the
it would strain the meaning of the notion further procedure fixed with due regard to
"home" in Article 8 (art. 8) to extend it to the possibility of
comprise property on agreement being reached between the
Turkish Government and the applicant.
FOR THESE REASONS, THE CONCURRING OPINION OF
COURT JUDGE WILDHABER, JOINED
1. Dismisses by eleven votes to six the BY JUDGE
preliminary objection ratione temporis; RYSSDAL
2. Holds by eleven votes to six that the There was no need for the Court to give
denial of access to the applicant’s an express answer to Turkey’s claim that
property and consequent loss the "TRNC" was
of control thereof is imputable to Turkey; established by the Turkish Cypriot people
3. Holds by eleven votes to six that there in pursuance of their right to self-
has been a breach of Article 1 of Protocol determination (see paragraph
No. 1 (P1-1); 35 of the judgment). That claim must
4. Holds unanimously that there has been indeed fail.
no violation of Article 8 of the Until recently in international practice the
Convention (art. 8); right to self-determination was in
5. Holds unanimously that the question of practical terms identical to,
the application of Article 50 of the and indeed restricted to, a right to
Convention (art. 50) is not decolonisation. In recent years a
ready for decision; and consequently, consensus has seemed to emerge that
(a) reserves the said question; peoples may also exercise a right to self-
(b) invites the Turkish Government and determination if their human rights are
the applicant to submit, within the consistently and flagrantly
forthcoming six months, their violated or if they are without
written observations on the matter and, in representation at all or are massively
particular, to notify the Court of any under-represented in an undemocratic
agreement they may and discriminatory way. If this
reach; description is correct, then the right to
(c) reserves the further procedure and self-determination is a tool which
delegates to the President of the Chamber may be used to re-establish international
the power to fix the standards of human rights and
same if need be. democracy.
Done in English and in French, and In the instant case, the Court is faced with
delivered at a public hearing in the an applicant who alleges violations of
Human Rights Building, certain Convention
Strasbourg, on 18 December 1996. guarantees; with the respondent Turkish
Rolv RYSSDAL Government which alleges a right to self-
President determination of the
Herbert PETZOLD "TRNC" in order to disclaim
Registrar responsibility for a violation of certain
In accordance with Article 51 para. 2 of Convention guarantees; and with an
the Convention (art. 51-2) and Rule 53 international community which refuses to
para. 2 of Rules of recognise the entity which claims a right
Court A, the following separate opinions to self-determination (the
are annexed to this judgment: "TRNC").
cmiskp.echr.coe.int/tkp197/view.asp?… 16/30 When the international community in
- concurring opinion of Mr Wildhaber, 1983 refused to recognise the "TRNC" as
joined by Mr Ryssdal; a new State under
- dissenting opinion of Mr Bernhardt, international law (see paragraph 42 of the
joined by Mr Lopes Rocha; judgment), it by the same token implicitly
- dissenting opinion of Mr Baka; rejected the claim of
- dissenting opinion of Mr Jambrek; the "TRNC" to self-determination in the
- dissenting opinion of Mr Pettiti; form of secession. At that time the close
- dissenting opinion of Mr Gölcüklü. connection between the
R.R. right to self-determination and the
H.P. observance of international standards
with respect to human rights and
democracy was not established to the number of individuals are separated from
same extent as today. The "TRNC" is their property and their former homes.
constituted by what was I have, with the majority of the judges in
originally a minority group in the whole the Grand Chamber, no doubt that Turkey
of Cyprus (i.e. the "Turkish Cypriots") but bears a
what is now the majority considerable responsibility for the present
in the northern part of Cyprus. This group situation. But there are also other actors
invokes a right to self-determination and factors involved in
which under the 1985 the drama. The coup d’état of 1974 was
Constitution is denied by them to the the starting-point. It was followed by the
"Greek Cypriots" living in the territory of Turkish invasion, the
the "TRNC". This leads me population transfer from north to south
to the conclusion that where the modern and south to north on the island, and other
right to self-determination does not events. The
strengthen or re-establish the proclamation of the so-called "Turkish
human rights and democracy of all Republic of Northern Cyprus", not
persons and groups involved, as it does recognised as a State by the
not in the instant case, it cannot international community, is one of those
be invoked to overcome the international events. The result of the different
community’s policy of non-recognition of influences and events is the "iron
the "TRNC". wall" which has existed now for more
DISSENTING OPINION OF than two decades and which is supervised
JUDGE BERNHARDT JOINED by United Nations
forces. All negotiations or proposals for
BY JUDGE LOPES
negotiations aimed at the unification of
ROCHA Cyprus have failed up to
cmiskp.echr.coe.int/tkp197/view.asp?… 17/30 now. Who is responsible for this failure?
ROCHA Only one side? Is it possible to give a
I have voted for accepting the preliminary clear answer to this and
objection ratione temporis and against the several other questions and to draw a clear
finding of a legal conclusion?
violation of Article 1 of Protocol No. 1 The case of Mrs Loizidou is not the
(P1-1). Before I discuss the two main consequence of an individual act of
aspects of the case, some Turkish troops directed
general remarks are, in my view, against her property or her freedom of
indispensable. movement, but it is the consequence of
1. A unique feature of the present case is the establishment of the
that it is impossible to separate the borderline in 1974 and its closure up to
situation of the individual the present day.
victim from a complex historical 2. Turkey has accepted the jurisdiction of
development and a no less complex the Court only in respect of the facts
current situation. The Court’s which occurred
judgment concerns in reality not only Mrs subsequent to 22 January 1990. Such a
Loizidou, but thousands or hundreds of limitation excludes an inquiry into and
thousands of Greek final legal qualification of
Cypriots who have (or had) property in previous events, even if these were
northern Cyprus. It might also affect incompatible with a State’s obligation
Turkish Cypriots who are under the Convention.
prevented from visiting and occupying The Convention organs have accepted the
their property in southern Cyprus. It notion of "continuing violations",
might even concern citizens of violations which started
third countries who are prevented from prior to the critical date and which still
travelling to places where they have continue. I entirely agree with this
property and houses. The concept, but its field of
factual border between the two parts of application and its limits must be
Cyprus has the deplorable and inhuman appreciated. If a person is kept in prison
consequence that a great before and after the critical
date, if concrete property is illegally find a violation of Article 1 of Protocol
occupied before and after that date (as in No. 1 (P1-1). As explained above, the
the case of presence of Turkish troops
Papamichalopoulos and Others v. Greece, in northern Cyprus is one element in an
judgment of 24 June 1993, Series A no. extremely complex development and
260-B), there can be situation. As has been
no doubt that it falls within the Court’s explained and decided in the Loizidou
jurisdiction to examine facts and judgment on the preliminary objections
circumstances which have (23 March 1995, Series A
occurred after the date in question. The no. 310), Turkey can be held responsible
essential fact in such cases is the actual for concrete acts done in northern Cyprus
behaviour of State organs by Turkish troops or
which is incompatible with the officials. But in the present case, we are
commitments under the European confronted with a special situation: it is
Convention on Human Rights. the existence of the factual
The factual and legal situation is in my border, protected by forces under United
view different when certain historical Nations command, which makes it
events have given rise to a impossible for Greek
situation such as the closing of a border Cypriots to visit and to stay in their homes
with automatic consequences in a great and on their property in the northern part
number of cases. In the of the island. The
present case, the decisive events date back presence of Turkish troops and Turkey’s
to the year 1974. Since that time, Mrs support of the "TRNC" are important
Loizidou has not been factors in the existing
able to visit her property in northern situation; but I feel unable to base a
Cyprus. This situation continued to exist judgment of the European Court of
before and after the adoption Human Rights exclusively on the
of the Constitution of the so-called assumption that the Turkish presence is
"Turkish Republic of Northern Cyprus" illegal and that Turkey is therefore
of 1985 and the expropriation responsible for more or less
proclaimed therein. I share the doubts of everything that happens in northern
the Court (see paragraphs 45-47 of the Cyprus.
judgment) concerning DISSENTING OPINION OF
the validity of the expropriation; however JUDGE BAKA
this is not decisive. Turkey has recognised In the present case it is extremely difficult
the jurisdiction of the to determine whether, on the one hand,
Court only "in respect of facts ... which the violation
have occurred subsequent to the date of complained of by the applicant has been a
deposit of the present continuous one or whether, on the other
declaration"; the closing of the borderline hand, there has been
in 1974 is in my view the material fact and an instantaneous expropriation of the
the ensuing situation applicant’s property with continuing
up to the present time should not be effects. I agree with the majority
brought under the notion of "continuing that the answer to this question has direct
violation". consequences for deciding the
cmiskp.echr.coe.int/tkp197/view.asp?… 18/30 Government’s preliminary
up to the present time should not be objection ratione temporis.
brought under the notion of "continuing On the basis of the facts of the case, I have
violation". come to the conclusion that Mrs Loizidou
Therefore, the preliminary objection lost overall
ratione temporis raised by Turkey is in my control of her property as a direct
view legally wellfounded. consequence of the Turkish military
3. Even if I had been able to follow the action in 1974. Since that time she
majority of the Court in this respect, I has not been able to possess, to use and
would still be unable to enjoy her property in any way nor even
have access to it. It can
thus be said that there has been a form of cmiskp.echr.coe.int/tkp197/view.asp?… 19/30
de facto expropriation. property matters clearly show - are still
However, in the period between 1974 and very much open to interpretation.
1985 the applicant still held legal title to Nevertheless the principle has
her land. She some application in the field of real
purportedly lost ownership by the formal property in a situation such as that
act of expropriation pursuant to Article pertaining in the "TRNC" where it
159 (1) of the "TRNC" can be said that the interests of the
Constitution of 7 May 1985 which sought community required, if not necessitated,
to regularise the existing de facto some form of regularisation. In
situation. my view it is open to the Court to have
Although I share the view of the Court regard to this principle in the context of
concerning the non-recognition of the the dispute as to whether
"TRNC" by the there is a continuing situation without
international legal community and the endorsing or recognising the legitimacy
legal consequences flowing from this, I of the totality of the property
am also of the opinion that its rearrangements effected by the "TRNC"in
legal provisions "have been invoked by 1985.
the Turkish Government". In the instant Bearing in mind the de facto nature of the
case the legal situation in expropriation of the applicant’s property
respect of property issues is very close to up to 1985 as well
those of the former communist States in as the relevant provisions of the 1985
central and eastern Constitution affecting that property, I am
Europe. In those countries - which, it must unable to share the
be borne in mind, were internationally Court’s opinion that the applicant’s
recognised States - there complaint concerns a continuing
had been a long process of expropriation situation. Since the Court’s
of property by nationalisation legislation jurisdiction only concerns matters
and other legal means. occurring subsequent to 22 January 1990,
These actions, which led to enormous the Government’s objection
property rearrangements in the countries ratione temporis must be considered to be
concerned, cannot always well-founded.
be justified by simply referring to the fact DISSENTING OPINION OF
that those States had been recognised by JUDGE JAMBREK
the international I.
community at the relevant time. 1. In its decision on the preliminary
On the other hand, Article 159 of the objections in the present case the Court
"TRNC" Constitution and certain other joined to the merits the
legal provisions cannot be objection ratione temporis. It was of the
completely set to one side as devoid of all opinion that the correct interpretation and
effect merely on the basis of the application of the
international non-recognition of relevant restrictions raised difficult legal
the entity in northern Cyprus. It is rightly and factual questions which were closely
said in paragraph 45 of the judgment that connected to the merits
international law of the case (paragraphs 103 and 104 of the
recognises the legitimacy of certain judgment of 23 March 1995).
arrangements and transactions in such a It follows that the Court had first to
situation the "effects of which examine the applicant’s allegations of a
can be ignored only to the detriment of the continuing violation of her
inhabitants of the territory". The full property rights subsequent to 22 January
implications of this view, 1990. That examination entailed an
however, - as the recent and very different assessment as to whether the
legal arrangements in the former applicant could still be regarded as the
communist States as regards legal owner of the land, which in turn
property matters clearly show - are still depended upon a prior
very much open to interpretation.
Nevertheless the principle has
clarification of the manner in which the choices: (a) to hold that there was no
loss of her ownership occurred - or did not breach of the Convention because of the
occur - before that prior acceptance of the
date. In particular, did it occur by way of validity of the preliminary objection
an instantaneous act, and if so, by which without going into the merits; (b) to hold
act, or did she lose her that there was no breach after
property as a result of a longer process, firstly accepting the preliminary
ending in an irreversible expropriation, objection, and then going into the merits,
possibly by virtue of or (c) to hold that there was a
Article 159 of the "TRNC" Constitution 31/03/2009 ECHR Portal HTML View
of 7 May 1985?
firstly accepting the preliminary
2. I was unable to subscribe to the finding
objection, and then going into the merits,
of the majority of my colleagues that Mrs
or (c) to hold that there was a
Loizidou cannot
breach after firstly accepting the
be deemed to have lost title to her
preliminary objection, and then going into
property, and that she must therefore still
the merits.
be regarded as the legal
In retrospect, the majority of eight
owner of the land. On the other hand, after
members of the Commission who voted
considering facts advanced by the
for "non-violation" of Article
applicant and by the
1 of Protocol No.1 (P1-1) was
respondent Government, and those found
reinterpreted as being composed of three
by the Court, I also remained
members who found no
unconvinced of the opposite view,
violation after going into the merits, and
namely, that she in fact lost title to her
five members who voted for non-
property. Consequently, and in doubt, I
admissibility of the case, and had
was unable to dismiss the
either (a) not expressed a valid opinion on
preliminary objection ratione temporis.
the issue of violation at the merits stage
3. For similar reasons I also remained in
(the Cyprus
doubt as to whether the denial of access to
Government’s position), or (b) had
the applicant’s
expressed a valid opinion on this (this
property resulted in her loss of control,
seems to be President
amounting to a breach of Article 1 of
Trechsel’s view, although not stated in
Protocol No. 1 (P1-1),
exactly such terms).
which occurred due to the interference
All in all, two kinds of principled
with the peaceful enjoyment of her
reasoning about the issue seem possible at
possessions. Consequently I
first sight:
also dissented on the issue of the
(a) The two votes, at the
imputability of the interference to Turkey,
admissibility/preliminary objections
and on whether there has been
stage and at the merits stage, are
a violation of Article 1 of Protocol No. 1
independent of each other. The decision
(P1-1) (points 2 and 3 of this judgment’s
about the jurisdiction appears
operative provisions).
autonomous from a procedural
4. In the present case an interesting
point of view. But it may not be
interplay took place between casting a
autonomous in relation to the merits
vote on the preliminary
considering the facts, the law, or the
objection, and then on the merits. It is
philosophical views of a judge. For
worth mentioning it as an obiter dictum to
example, a judge may adhere to the
my opinion.
doctrine of judicial restraint, and
In the memorials and at the hearing we
therefore vote conservatively in favour of
were witness to the exchanges about the
the preliminary objection, while the
"proper" calculation of
merits of the case may on the
the votes of the members of the
other side be of quite another concern for
Commission at the admissibility and at
him or for her.
the final stages. It appeared as
Moreover, the "Scandinavian doctrine" of
obvious that an individual member of the
minority respect for majority decision in
Commission might indeed opt for any one
the follow-up cases
of the following three
as applied to the present issue would uncertainties of events which occurred as
recommend that a judge who was long ago as 1974 and even before. It also
overruled on the preliminary seems beyond this
objection should recognise its authority Court’s abilities and competence to assess
immediately. Because he feels, or actually with the required certainty whether
is bound by the decision Turkey’s interference was
on Court’s jurisdiction, he should go into (in)consistent with international
the merits all the way - by expressing agreements, and whether or not it was
views and by casting his (in)consistent with general principles
vote. of international law.
(b) The second kind of reasoning would I am indebted to my colleague Judge
advocate interdependence of the two Wildhaber for having reminded me also
votes, at the preliminary of the following ideas.
objections and at the merits stages. If the The United Nations and other
judge takes the view that a preliminary international policies of non-recognition
objection is wellfounded, of the "TRNC" are valid on an
he has to vote for non-violation, given that inter-State level. As a result, the "TRNC"
in his view the Court is not competent to Government cannot create legislation or
deal with the bring about changes
issue and should therefore never decide with legal effect in international law.
on the merits. If the dissenting judge’s However, it would be going too far to say
view were to prevail, the that no purportedly legal
Court would not be seized, the applicant’s acts of the "TRNC" administration are
claim would not be considered on its valid. For example, a marriage conducted
merits, and the violation by a "TRNC" official,
would consequently not be found. 31/03/2009 ECHR Portal HTML View
The present case departs from the two
acts of the "TRNC" administration are
options discussed in the sense that the
valid. For example, a marriage conducted
decision on the
by a "TRNC" official,
preliminary objection ratione temporis
and registered in the "TRNC", would
depended upon a prior examination of
have legal effect outside that
certain aspects of the merits.
"jurisdiction". Similarly, a transfer of
Therefore, the choice between the two
property between private individuals in
options is not exhaustive of all
northern Cyprus, registered by an official
possibilities. As for myself, I came
of the "TRNC", would
to the conclusion that the merits of the
have legal effect elsewhere in the world.
case fall outside the jurisdiction of the
Similar situations have occurred in other
Court ratione temporis only
countries in the past. For example, in the
after a preliminary examination of those
settlement between
facts found by the Court which related to
Czechoslovakia and Germany following
the issue of the title and
the Second World War, it was decided
control of the property.
that the Munich
My subsequent dissent from the second
Agreement was null and void, but that
and the third points of the operative
land transactions between private
provisions of the judgment
individuals were valid.
was effected cumulatively by the
Furthermore, the events in northern
reasoning under (b) above, by my
Cyprus in 1974 would not be sufficient on
preliminary and partial understanding
their own to establish
of the merits of the case, and by some
that Mrs Loizidou had lost her property.
further considerations which I set out
For example, if the prior status quo had
below.
been re-established in
II. 1975 or 1976, she would not have lost her
5. The alleged original ("instantaneous") property. But the prior status quo has not
breach is in my view veiled in the factual yet been restored.
and legal Although it may be seen that Mrs
Loizidou did not lose her property by an
instantaneous act in 1974, it
may nonetheless be disputed that no will have to resolve in one way or another
transfer of ownership was effected. the issue of recognition of the acts of the
The Court’s earlier case-law has always "TRNC" from the
dealt in this respect with concrete commencement of its existence, and/or of
situations. For example, in reversion to the original status prior to
the Papamichalopoulos and Others v. such acts.
Greece judgment (of 24 June 1993) the 7. A national and an international judge
case concerned a refusal by alike, before making a decision to act in
the authorities to execute a national court an activist or a
decision. That is not the case here, where restrained way, will as a rule examine
the ownership of Mrs whether the case is focused in a
Loizidou was allegedly altered by the monocentric way and ripe for
events of 1974, or even as a result of the decision, and whether it is not overly
follow-up "process of the moot and political.
‘taking of the property’". Given that efforts are under way to arrive
I must therefore suppose that after a at a peaceful settlement of the Cyprus
certain time events in the "TRNC" may problem within UN,
have led to a transfer of CE and other international bodies, a
ownership - in which case there is no judgment of the European Court may
violation continuing to the present day: appear as prejudicial. The
the relevant acts in northern respective "political nature" of the issue at
Cyprus were possibly completed by the hand does not refer, however, to the
time of the Turkish declaration possible political
recognising this Court’s consequences of the final judgment; all
jurisdiction. judgments, domestic and international,
The doctrine of "continuing violation" have at least some general
implies a beginning, i.e., a critical event social and political effects.
constituting the original The "political nature" of the present case
breach, and its continuation. In the case of is in my view rather related to the place of
Mrs Loizidou the Court in my view failed the courts in
to ascertain both general, and of the Strasbourg mechanism
ingredients to this concept in an in particular, in the scheme of the division
unequivocal manner. This line of and separation of
reasoning thus led me, inter alia, to the powers. There, the courts have a different
conclusion that the objection ratione role to play, than, e.g., the legislative and
temporis applies. executive bodies.
6. Moreover, the factual situation Courts are adjudicating in individual and
established in 1974 has persisted ever in concrete cases according to prescribed
since and it is still uncertain legal standards. They
which side in the conflict, or even more are ill-equipped to deal with large-scale
likely, what kind of negotiated and complex issues which as a rule call
compromise solution will become for normative action and
"ultimately successful". While it is true 31/03/2009 ECHR Portal HTML View
that simple longevity of control must not
are ill-equipped to deal with large-scale
be equated with "ultimate
and complex issues which as a rule call
success", it is also far from established
for normative action and
whether the "TRNC" de facto
legal reform.
Government will survive or not, and
The same kinds of dilemmas face an
if it will, in what form - as a federal or
international tribunal, which should, in
confederal unit, an independent state, or
my view, proceed in a
in some other form. In any
rather restrained, that is, conservative way
case, the validity of its acts concerning the
in matters which clearly transcend
applicant must be considered to depend
adjudication of an individual
upon its ultimate
case, especially when they are part and
success. The final outcome of the conflict
parcel of a given structure of inter-
- in the form of a post facto international
community relationships. As to
or bilateral settlement -
the present case, a "violation decision" on I voted with the minority against finding
Article 1 of Protocol No.1 (P1-1) might a violation of Article 1 of Protocol No. 1
invite another one (P1-1) for a number
hundred thousand or so similar cases in of reasons. In the judgment on the
which applications could be filed with preliminary objections I had already
legitimate expectations that expressed my views as follows:
Commission’s reports or the Court’s "At the examination of preliminary objections
judgments will follow the present stage, after the discussion at the public hearing,
which was limited
precedent. In that case, the Court to analysis of these objections by the Parties, the
has in fact taken a broad decision about a European Court was not able to take cognisance of
large-scale issue in the realm of public all the
international law. problems, and this circumstance militated even
more forcefully in favour of joining all these
8. This case may furthermore affect the objections to the
role of the Court in another perspective, merits. To date legal writers have not considered
on which I also had analysis of the Turkish declaration a simple matter
the privilege to exchange and share ideas (see Claudio
Zanghi, Christian Tomuschat, Walter Kalin, Pierre-
with my colleague Judge Wildhaber. It Henri Imbert, Christopher Lush, etc.).
may affect the way in An overall assessment of the situation, beginning
which the Court might handle future cases with the concepts of sovereignty and jurisdiction,
involving new member States such as would make
it possible to review the criteria (‘occupation’,
Croatia, Bosnia and ‘annexation’, territorial application of the Geneva
Hercegovina or Russia. The Court might Conventions in
have to look at what happened in the northern Cyprus, ‘conduct of international
Croat region of Krajina, in relations’) on the basis of which the UN has
analysed both the problem
the Republika Srpska, in other parts of whether or not to recognise northern Cyprus as a
Bosnia and Hercegovina, or in Chechnya. State and the problem of the application of the UN
There, alleged violations Charter (see
of Convention-protected human rights Security Council Resolution 930). The
and fundamental freedoms would be responsibilities of the European Convention
institutions, when faced with
counted in millions, not "only" such difficulties, reflect the mutual commitment of
in hundreds and thousands of possible the member States to ensuring the best and widest
cases. protection of
I have great respect for the principled individuals and fundamental rights in the countries
concerned by applying the Convention provisions in
view that the Court’s only task is to see to a manner
it that fundamental consistent with their object and purpose."
rights of individuals are respected, (individual dissenting opinion, Series A no. 310, pp.
irrespective of their numbers. On the 43-44)
"Admittedly the concept of jurisdiction is not
other hand, I see much reason to restricted to the territory of the High Contracting
consider seriously an equally legitimate Parties, but it is
issue of this Court’s effectiveness in still necessary to explain exactly why jurisdiction
resolving human rights should be ascribed to a Contracting Party and in
what form and
problems. This problem is even more manner it is exercised. We note that in the Drozd
difficult in respect of individual cases, and Janousek v. France and Spain judgment cited in
such as the present one, which paragraph 62
are inextricably linked to, and also depend the Court eventually found that there had been no
violation.
upon the solution of a large-scale inter- 31/03/2009 ECHR Portal HTML View
communal ethnic and/or cmiskp.echr.coe.int/tkp197/view.asp?… 23/30
political conflict. While the responsibility of a Contracting Party may
9. In the final analysis, the totality of the be engaged as a consequence of military action
outside its
above considerations led me to take a territory, this does not imply exercise of its
restrained judicial jurisdiction. The finding in paragraph 64 does not
approach in the present case, and to accept refer to any criterion
validity of the exceptio ratione temporis. for deciding the question of jurisdiction. In our
opinion, therefore, there is a contradiction between
DISSENTING OPINION OF what the Court
JUDGE PETTITI says in paragraph 62 and its conclusion in paragraph
(Translation) 64, and this contradiction reappears in the vote on
point 2 of
the operative provisions. The Court should have on the basis of the facts of the Loizidou
looked into the merits of the question who did or did case but has to be sought in the sphere of
not have
jurisdiction before ruling on the objection." (joint international relations.
dissenting opinion of Judge Gölcüklü and myself, Since 1974, the United Nations not
loc. cit., p. 35) having designated the intervention of
That is why I was in favour of upholding Turkish forces in northern
the objection ratione temporis and of Cyprus as aggression in the international
distinguishing between law sense, various negotiations have been
ratione loci and ratione personae. conducted with a view
Neither the second deliberations nor the to mediation by the United Nations, the
memorials produced supplied the detailed Council of Europe and the European
information needed Union. Moreover, the Court
for a thorough assessment of the facts. did not examine the question whether that
Nor did the parties’ arguments concerning intervention was lawful (see paragraph 56
Protocol No. 1 (P1) of the judgment). The
shed any light on the problem of decision to station international forces on
attributing responsibility for any the line separating the two communities
interference with the use of property there made the free movement
may have been, although free access to of persons between the two zones
the property depended on liberty of impossible, and responsibility for that
movement from one zone to does not lie with the Turkish
the other. Government alone.
The majority held that there had been a The Court’s reference to the international
violation of Article 1 of Protocol No. 1 community’s views about the Republic of
(P1-1) mainly because Cyprus and the
of the refusal of access since 1974, which "TRNC" (see paragraph 42 of the
led to the complete loss of control over the judgment) is not explained. But is it
property, a matter possible in 1996 to represent the
covered by the first sentence of that views of this "international community"
provision (P1-1). They considered that on the question as uncontested, given that
the interference was not the most recent
justified and criticised the Turkish resolutions of the United Nations General
Government for not explaining how the Assembly and Security Council go back
need to rehouse the Turkish several years and the
Cypriot refugees displaced after 1974 Court had no knowledge of the missions
could justify the measure taken against of the international mediators? For the
Mrs Loizidou. Indeed, the Court it would appear that
Court went on to say that it could not only Turkey is "accountable" for the
accept such a justification. In any case, I consequences of the 1974 conflict! In my
consider that consideration opinion, a diplomatic
to be of secondary importance. situation of such complexity required a
The need concerned seems obvious, and lengthy and thorough investigation on the
if events had made the rehousing spot, conducted by a
operation inevitable, that delegation of the Commission, of the role
could justify the interference. The facts of of the international forces and the
the matter had to be looked into. The administration of justice,
Loizidou case as a whole before the Court determined how
could not be analysed as if it concerned a responsibility, in the form of the
de facto expropriation under ordinary jurisdiction referred to in Article 1 of the
law, without Convention (art. 1), should be attributed.
compensation. The movement of The problem of the status and
displaced persons from one zone to responsibilities of the "TRNC" should
another, an exodus which affected have been examined more fully. It
both communities, was the consequence is true that the United Nations General
of international events for which Assembly has not admitted the "TRNC"
responsibility cannot be ascribed as a member, but the lack
of such recognition is no obstacle to the violation in 1974, at the time of the coup
attribution of national and international d’état, even before a de facto
powers (see paragraph 51 expropriation in 1985 by the local
31/03/2009 ECHR Portal HTML View authorities and during a period of disorder
on which the Commission has not been
of the judgment). The case of Taiwan is
able to throw any light,
comparable.
making it impossible to dissociate Mrs
Moreover, the Court accepted the validity
Loizidou’s personal situation from the
of measures adopted by the "TRNC"
historical situation which
authorities in the fields
also affected the Turkish Cypriot
of civil law, private law and the
community. The term "continuing
registration of births, deaths and
violation" is not appropriate, as the
marriages, without specifying what
Commission observed in paragraphs 97
reasons for distinguishing between these
and 98 of its report.
branches of law and the law governing the
It should also be noted that the
use of property
Commission limited its finding on the
justified its decision. On the merits of Mrs
question whether Turkey
Loizidou’s claim, there are a number of
exercised jurisdiction to the border zone,
uncertainties which
not the whole of northern Cyprus (see
have not been elucidated by the files.
applications nos.
Since 1974 she does not seem to have
6780/74, 6950/75 and 8007/77) and that it
taken any steps to give
concluded that the applicants’ arrest,
tangible expression to her intention of
detention and trial in the
going to live in northern Cyprus or
above-mentioned cases were not acts
brought proceedings to preserve
imputable to Turkey (see paragraph 51 of
her title between 1974 and 1985 at least in
the judgment and
the courts of the Republic of Cyprus,
paragraph 114 of the Turkish
although she maintained
Government’s memorial). In its report of
that the latter had sole legitimate
8 July 1993 the Commission
jurisdiction and sovereignty over the
refrained from ruling on the status of the
whole island. She did not apply to
"TRNC".
the Commission until 1989 and she has
That takes us a long way from the type of
not produced any evidence that she
situation which the Court termed a
applied to the UN forces for
continuing violation in
authorisation to cross the line and travel
cases such as the Holy Monasteries case.
in the area beyond the border zone. The
The scope and limits of the concept of a
very basis of her civil
continuing violation
action remains to be specified, her
should have been defined.
application being mainly concerned with
Whatever the responsibilities assumed in
access to her property. Loss
1974 at the time of the coup d’état, or
of the use of the property is essentially
those which arose with
due to the creation of the border, not to
the arrival of the Turkish troops in the
any one act on the part of
same year, however hesitant the
a local authority.
international community has been in
The Court takes the view that it acquired
attempting to solve the international
jurisdiction on 22 January 1990 (see
problems over Cyprus since 1974, at the
paragraph 32 of the
time when the "TRNC" was
judgment). Quite apart from the problem
set up or at the time of Turkey’s
of admissibility raised by the wording of
declaration to the Council of Europe,
Turkey’s declaration
those responsibilities being of
under Article 46 of the Convention (art.
various origins and types, the whole
46), it is not obvious that there was a
problem of the two communities (which
continuing violation of Mrs
are not national minorities as
Loizidou’s property rights. On the
that term is understood in international
contrary, it could be considered that there
law) has more to do with politics and
was an instantaneous
diplomacy than with
European judicial scrutiny based on the that is likely to become the prototype for
isolated case of Mrs Loizidou and her a whole series of similar cases which will
rights under Protocol No. in all probability be
1 (P1). It is noteworthy that since 1990 resolved by political bodies. Hitherto,
there has been no multiple inter-State each time the Strasbourg supervision
application bringing the institutions had to deal with a
whole situation in Cyprus before the case involving application of other
Court. That is eloquent evidence that the international treaties or agreements, they
member States of the proceeded with great caution,
Council of Europe have sought to and such applications never got past the
exercise diplomatic caution in the face of admissibility stage. It is interesting, for
chaotic historical events which example, that even in the
the wisdom of nations may steer in a present case the Commission, in its report
positive direction. of 8 July 1993, prudently stated with
DISSENTING OPINION OF regard to the applicant’s
JUDGE GÖLCÜKLÜ allegation that she had been unlawfully
31/03/2009 ECHR Portal HTML View deprived of her possessions: "The
cmiskp.echr.coe.int/tkp197/view.asp?… 25/30 Commission finds that it is not in
(Translation) this connection required to examine the
I disagree with the majority on all points status of the ‘Turkish Republic of
and in the first place on rejection of the Northern Cyprus’. It notes that
Turkish Government’s the demonstration on 19 March 1989, in
preliminary objection concerning the the course of which the applicant was
Court’s jurisdiction ratione temporis. The arrested in northern
present dissenting opinion Cyprus, constituted a violation of the
is prompted mainly by the fact that this arrangements concerning the respect of
case raises legal and political difficulties the buffer-zone in Cyprus ...
which go well beyond the The provisions under which the applicant
conceptual framework established by the was arrested and detained ... served to
Convention and the whole of the Court’s protect this very area.
case-law hitherto. This cannot be considered as arbitrary"
1. Firstly, the present judgment contains (see paragraph 82 of the report).
serious methodological flaws. As I Likewise, in its report in the case
pointed out in my of Chrysostomos and Papachrysostomou
dissenting opinion on the preliminary v. Turkey, the Commission stated: "... the
objections in the same case (judgment of Commission does not
23 March 1995, Series A feel called upon to resolve the dispute
no. 310), the central legal problem in the between the parties as to the status of the
case of Loizidou v. Turkey is the question area in which the
of jurisdiction and applicants’ arrest took place. It refers in
responsibility for the purposes of the this respect to paragraph 11 sub-
Convention. Not only does the judgment paragraph (b) of the report of
not resolve this problem, it the Secretary-General of the United
boldly ventures into a highly political Nations ... and to paragraph 6 of the
area, namely the Court’s definition of the Unmanning Agreement of 1989
capacity in which Turkey is ..." (see paragraph 153 of the report).
present in northern Cyprus and its 2. As regards jurisdiction too, the Court’s
"assessment" of the legal existence of the present judgment goes beyond the limits
Turkish Republic of Northern of its previous
Cyprus, both of which are matters that lie case-law on the question.
entirely outside its jurisdiction and are Wherever jurisdiction is not derived from
dealt with differently by the territorial ambit of a Contracting
other bodies. In other words, the Court State’s legal system, the
has built its own database in order to be fact of its existence must be expressly
able to "rule" on a case established, since in such cases it is not
legally correct to speak of
application of the Convention ratione arrest on 19 July 1989, sees no basis under
loci. On that point I refer to my dissenting the Convention for imputing these acts to
opinion in the abovementioned Turkey" (see
Loizidou judgment and the paragraph 170 of the report).
Commission’s decision of 12 March 1990 The present judgment breaks with the
on the admissibility of previous case-law since in dealing with
application no. 16137/90, which the question whether
concerned application of the Convention there was jurisdiction ratione personae it
to Hong Kong (Decisions and applies the criteria for determining
Reports (DR) 65, p. 330 et seq.). whether there was jurisdiction
In its decision of 26 May 1975 concerning ratione loci, although the conditions for
the case of Cyprus v. Turkey (nos. doing so have not been met. Thus, for the
6780/74 and 6950/75, first time, the Court is
DR 2, p. 136) the Commission had passing judgment on an international law
already taken the same view. That situation which lies outside the ambit of
decision clearly shows that it is not the powers conferred on
a question of the Convention’s it under the Convention’s supervision
application ratione loci, but of its machinery. In this judgment the Court
application ratione personae. projects Turkey’s legal system
That approach is clarified still further in on to northern Cyprus without concerning
other decisions in which the Commission itself with the political and legal
has expressed the consequences of such an
opinion that the acts of a State’s officials, approach.
including diplomatic or consular agents, 3. I would also emphasise that not only
"bring other persons or does northern Cyprus not come under
property within the jurisdiction of that Turkey’s jurisdiction,
State to the extent that they exercise but there is a (politically and socially)
authority over such persons or sovereign authority there which is
property" (application no. 17392/90, DR independent and democratic. It is
73, p. 193, and application no. 7547/76, of little consequence whether that
DR 12, p. 73). authority is legally recognised by the
In its Drozd and Janousek v. France and international community. When
Spain judgment the Court too, after noting applying the Convention the actual
that the Principality factual circumstances are the decisive
31/03/2009 ECHR Portal HTML View element. The Commission and
the Court have stated more than once that
of Andorra was not "an area ... common
the concept of "jurisdiction" within the
to the French Republic and the Kingdom
meaning of Article 1 of
of Spain, nor ... a
the Convention (art. 1) covers both de
Franco-Spanish condominium",
facto and de jure jurisdiction. In northern
concluded that there was no jurisdiction
Cyprus there is no
ratione loci. It was only after
"vacuum", whether de jure or de facto, but
excluding that category of jurisdiction
a politically organised society, whatever
that the Court turned to the question
name and classification
whether there was jurisdiction
one chooses to give it, with its own legal
ratione personae, and what is more on the
system and its own State authority. Who
basis of the case-law cited above
today would deny the
(judgment of 26 June 1992,
existence of Taiwan? That is why the
Series A no. 240, p. 29, para. 91).
Commission in its report in the
In its report in the cases of Chrysostomos
Chrysostomos and
and Papachrysostomou the Commission
Papachrysostomou cases examined the
observed: "The
law in force in northern Cyprus as such,
Commission, having regard to the
and not Turkish law in
developments described above and
order to determine whether the
finding no indication of direct
applicants’ detention had been lawful (see
involvement of Turkish authorities in the
paragraphs 148, 149 and 174
applicants’ detention, and the proceedings
of the report).
against them, after their
4. I now come to the heart of the problem. Kingdom and Greece) which gave these
I voted in favour of upholding the Turkish States the right to intervene separately or
Government’s jointly when the
preliminary objection ratione temporis situation so required, and the situation did
and against finding a violation of Article so require ultimately in July 1974, on
1 of Protocol No. 1 (P1- account of the coup
1). As Judge Bernhardt, the Vice- d’état. In all of the above, incidentally, I
President of the Court, rightly pointed out make no mention of the bloody events and
in his dissenting opinion, some incidents which had
general remarks are indispensable before been going on continually since 1963.
any discussion of the two main aspects of This implementation of a clause in the
the case can begin. Treaty of Guarantee changed the
I agree entirely with that part of Judge previously existing political
Bernhardt’s opinion where he states: "A situation and durably established the
unique feature of the separation of the two communities which
present case is that it is impossible to had been in evidence as
separate the situation of the individual early as 1963.
victim from a complex I fully agree with Judge Bernhardt that
historical development and a no less after the 1974 coup d’état there were a
complex current situation. The Court’s number of actors and
judgment concerns in reality factors involved in the Cypriot "drama",
not only Mrs Loizidou, but thousands or including "the population transfer from
hundreds of thousands of Greek Cypriots north to south and south to
who have (or had) north". He continued: "The result of the
property in northern Cyprus. It might also different influences and events is the ‘iron
affect Turkish Cypriots who are wall’ which has existed
prevented from visiting and now for more than two decades and which
occupying their property in southern is supervised by United Nations forces.
Cyprus. It might even concern citizens of All negotiations or
third countries who are proposals for negotiations aimed at the
prevented from travelling to places where unification of Cyprus have failed up to
they have property and houses. The now. Who is responsible for
factual border between the this failure? Only one side? Is it possible
two parts of Cyprus has the ... to give a clear answer to this and several
consequence that a great number of other questions and to
individuals are separated from their draw a clear legal conclusion? ... The case
property and their former homes." of Mrs Loizidou is not the consequence
The Cypriot conflict between the Turkish of an individual act of
and Greek communities is mainly Turkish troops directed against her
attributable to the 1974 property or her freedom of movement, but
coup d’état, carried out by Greek Cypriots it is the consequence of the
with the manifest intention of achieving establishment of the borderline in 1974
union with Greece and its closure up to the present day."
(enosis), which the Cypriot head of state After the establishment of the buffer-zone
at the time vigorously criticised before the under the control of United Nations
international bodies. forces, movement from
After this coup d’état Turkey intervened north to south and vice versa was
to ensure the protection of the Republic of prohibited and there was a population
Cyprus under the exchange with the common
terms of a Treaty of Guarantee previously consent of the Turkish and Cypriot
concluded between three interested States authorities under which eighty thousand
(Turkey, the United Turkish Cypriots moved from
31/03/2009 ECHR Portal HTML View southern to northern Cyprus.
I must emphasise once again that, as
terms of a Treaty of Guarantee previously
already mentioned at the very beginning
concluded between three interested States
of this dissenting opinion,
(Turkey, the United
in the present case we are dealing with a their properties in the north and from
political situation and it is impossible to living there. Its establishment, which took
separate the political place before 1990, that is
aspects of the case from the legal aspects. before Turkey recognised the Court’s
The case has another political dimension jurisdiction, was an instantaneous act
for our Court. Its judgment will certainly which froze a de facto
have consequences situation of a political nature. That being
for future cases - whose origins go back the case, we are not confronted with a
to the Second World War - against new "continuing situation" as the
members of the Council majority of the Court considered. In this
of Europe, such as the countries in central case, therefore, there is no question of a
or eastern Europe previously governed by continuing violation nor
communist regimes. of any infringement of the applicant’s
Turkey has recognised the Court’s right of property. That is also the view
jurisdiction only in respect of events taken by the Commission,
subsequent to 22 January 31/03/2009 ECHR Portal HTML View
1990. That restriction excludes all judicial
of any infringement of the applicant’s
consideration of events prior to that date,
right of property. That is also the view
even if they were
taken by the Commission,
incompatible with the respondent State’s
which noted: "the applicant, who was
obligations under the Convention.
arrested after having crossed the buffer-
The Convention institutions have
zone in Cyprus in the course
accepted the notion of "continuing
of a demonstration, claims the right freely
violations", that is violations which
to move on the island of Cyprus,
began before the critical date and
irrespective of the buffer-zone
continued afterwards. However, where
and its control, and bases this claim on the
this concept is invoked it is vital
statement that she owns property in the
to define its scope and its limits. In the
north of Cyprus". The
case of imprisonment or the illegal
report continues: "The Commission
occupation of land before and
acknowledges that limitations of the
after the date concerned there is no doubt
freedom of movement - whether
that a continuing violation exists and that
resulting from a person’s deprivation of
the period subsequent
liberty or from the status of a particular
to the critical date falls within the Court’s
area - may indirectly affect
jurisdiction. Like Judge Bernhardt,
other matters, such as access to property.
however, I consider that the
But this does not mean that a deprivation
position is different in the present case,
of liberty, or
where a certain historical event has led to
restriction of access to a certain area,
"a situation such as the
interferes directly with the right protected
closing of a border with automatic
by Article 1 of Protocol
consequences in a great number of cases".
No. 1 (P1-1). In other words, the right to
If it were otherwise, the
the peaceful enjoyment of one’s
Strasbourg institutions could be
possessions does not include,
confronted with the difficult task of
as a corollary, the right to freedom of
reconsidering historical events many
movement." The Commission
years after their occurrence and applying
accordingly concluded that there had
Convention standards retrospectively.
been no violation of Article 1 of Protocol
In the Loizidou v. Turkey case it is the
No. 1 to the Convention (P1-1) (see the
existence of a buffer-zone, a kind of
Commission’s report
border guarded by UN
on the application of Loizidou v. Turkey,
forces in collaboration with the security
paras. 97, 98 and 101).
forces of both communities, in 1 The case is numbered 40/1993/435/514. The first
accordance with the agreements number is the case's position on the list of cases
they have concluded, which is preventing referred to the Court
the Greek Cypriots of southern Cyprus in the relevant year (second number). The last two
numbers indicate the case's position on the list of
from obtaining access to 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.
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
LOIZIDOU v. TURKEY JUDGMENT
CONCURRING OPINION OF JUDGE WILDHABER,
JOINED BY JUDGE RYSSDAL
CONCURRING OPINION OF JUDGE WILDHABER,
JOINED BY JUDGE RYSSDAL
DISSENTING OPINION OF JUDGE BERNHARDT
JOINED BY JUDGE LOPES ROCHA
DISSENTING OPINION OF JUDGE BERNHARDT
JOINED BY JUDGE LOPES ROCHA
DISSENTING OPINION OF JUDGE BAKA
DISSENTING OPINION OF JUDGE BAKA
DISSENTING OPINION OF JUDGE JAMBREK
DISSENTING OPINION OF JUDGE JAMBREK
DISSENTING OPINION OF JUDGE PETTITI
DISSENTING OPINION OF JUDGE PETTITI
DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

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COURT (CHAMBER) 2.

In a judgment of 23 March 1995 on

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