text:
The present judgment is subject to editorial revision before its reproduction
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I. The Government's preliminary objection ratione
II. Article 1 of Protocol No.
III. Article 8 of the Convention
IV. Article 50 of the Convention
A. Turkish
military presence in Northern Cyprus
Article 159(1)(b) of the "TRNC" Constitution
The international response to the establishment of the "TRNC"
Further arguments of those appearing before the Court
B. The Court's assessment
A. The imputability issue
Judgment delivered by a Grand Chamber
Turkey - denial of access to and interference with property rights in
northern Cyprus
I. The Government's preliminary objection ratione temporis
Turkish Government claimed inter alia that applicant's property had
been irreversibly expropriated by virtue of Article 159 of "TRNC"
("Turkish Republic of Northern Cyprus") Constitution of 7 May
1985, prior to Turkey's Declaration of 22 January 1990 accepting Court's
Evident from international practice and resolutions of various international
bodies that international community does not regard "TRNC" as
State under international law and that Republic of Cyprus remains sole
legitimate Government of Cyprus - Court cannot therefore attribute legal
validity for purposes of Convention to provisions such as Article 159 of
1985 Constitution - accordingly, applicant cannot be deemed to have lost
title to property - alleged violations are thus of continuing nature. Conclusion:
objection dismissed (eleven votes to six).
II. Article 1 of Protocol
No. 1
A. Imputability issue
Obvious from large number of troops engaged in active duties in northern
Cyprus that Turkish army exercises effective overall control there - in
circumstances of case, this entails Turkey's responsibility for policies
and actions of "TRNC" - thus, denial to applicant of access to
property in northern Cyprus falls within Turkey's "jurisdiction"
for purposes of Article 1 of Convention and is imputable to Turkey - establishment
of State responsibility does not require examination of lawfulness of Turkey's
intervention in 1974.
B. Interference with property rights
Applicant remained legal owner of land, but since 1974 effectively lost
all control, use and enjoyment of it - thus, continuous denial of access
amounts to interference with rights under Article 1, Protocol No. 1 - Turkish
Government have not sought to justify interference and Court does not find
such complete negation of propety rights justified.
Conclusion: violation (eleven votes to six).
III. Article 8 of
the Convention
Since applicant did not have home on land in question, no interference
for purposes of Article 8.
Conclusion: no violation (unanimously).
IV. Article 50 of
the Convention
Conclusion: question reserved (unanimously).
Court's case-law referred to
21.2.1975, Golder v. the United Kingdom; 9.10.1979, Airey v. Ireland;
18.12.1986, Johnston and Others v. Ireland; 20.3.1991, Cruz Varas and Others
v. Sweden; 24.6.1993, Papamichalopoulos and Others v. Greece; 22.9.1993,
Klaas v. Germany; 24.2.1995, McMichael v. the United Kingdom; 23.3.1995,
Loizidou v. Turkey (Preliminary Objections); 27.9.1995, McCann and Others
v. the United Kingdom; 24.10.1995, Agrotexim and Others v. Greece; 25.4.1996,
Gustafsson v. Sweden In the case of Loizidou v. Turkey,
The European Court of Human Rights, sitting, pursuant to Ruleθ51 of
Rules of Court A, as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President, Mr R. Bernhardt, Mr F. Gslcώklώ, Mr L.ΨE.
Pettiti, Mr B. Walsh, Mr A. Spielmann, Mr S.K. Martens, Mrs E. Palm, Mr
R. Pekkanen, Mr A.N. Loizou, Mr J.M. Morenilla, Mr A.B. Baka, Mr M.A. Lopes
Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr P. Jambrek, Mr U. L_hmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 24 October 1995, 24 January and 28θNovember
Delivers the following judgment on the merits, which was adopted on
the lastΨmentioned date:
1. The case was referred to the Court by the Government of the Republic
of Cyprus ("the Cypriot Government") on 9 November 1993, within
the three-month period laid down by Article 32 σ 1 and Articleθ47 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention"). It originated in an application (no.θ15318/89)
against the Republic of Turkey ("the Turkish Government") lodged
with the European Commission of Human Rights ("the Commission")
under Articleθ25 on 22 July 1989 by a Cypriot national, Mrs Titina Loizidou.
2. In a judgment of 23 March 1995 on various preliminary objections
raised by the Turkish Government (Series A no. 310), the Court dismissed
an objection concerning alleged abuse of process; held that the facts alleged
by the applicant were capable of falling under Turkish "jurisdiction"
within the meaning of Article 1 of the Convention and that the territorial
restrictions attached to Turkey's Article 25 and 46 declarations were invalid
but that the declarations contained valid acceptances of the competence
of the Commission and Court. It also joined to the merits the preliminary
objection ratione temporis.
3. As President of the Chamber (Rule 21 σ 6), Mr Ryssdal, acting through
the Registrar, consulted the Agents of the Governments, the applicant's
lawyer and the Delegate of the Commission on the organisation of the proceedings
(Rules 37 σ 1 and 38) in relation to the merits. Pursuant to the order
made in consequence, the Registrar received the memorials of the applicant,
the Cypriot Government and the Turkish Government on 29 June, 17 July and
18 July 1995 respectively. In a letter of 2 August the Deputy to the Secretary
of the Commission informed the Registrar that the Delegate would present
his observations at the hearing.
4. On 13 September 1995 the Commission, the applicant and the Cypriot
and Turkish Governments submitted their observations on the question of
reference in the proceedings before the Court to a confidential report
of the European Commission of Human Rights in the case of Chrysostomos
and Papachrysostomou v. Turkey which was then pending before the Committee
of Ministers of the Council of Europe, as requested by the President in
a letter of 8 September.
5. In accordance with the President's decision, the hearing on the merits
took place in public in the Human Rights Building, Strasbourg, on 25 September
1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Turkish Government
Mr B. a_lar, Agent, Mr T. 1zkarol, Mr E. Apakan, Mr H. Golsong, Mrs
D. Ak*ay, Mr 1. Koray, Mr Z. Necatigil, Counsel;
(b) for the Cypriot Government
Mr A. Markides, Attorney-General, Agent, Mr M. Triantafyllides, Barrister-at-Law,
Mr M. Shaw, Barrister-at-Law, Mrs T. Polychonidou, Counsel of the Republic
A', Mrs S.M. Joannides, Counsel of the Republic A', Counsel, Mr P. Polyviou,
Barrister-at-Law, Mrs C. Palley, Consultant to the Ministry of Foreign
Affairs, Mr N. Emiliou, Consultant to the Ministry of Foreign Affairs,
(c) for the Commission
Mr S. Trechsel, Delegate;
(d) for the applicant
Mr A. Demetriades, Barrister-at-Law, Mr I. Brownlie, QC, Ms J. Loizidou,
Barrister-at-Law, Counsel.
The Court heard addresses by Mr Trechsel, Mr Demetriades, MrθBrownlie,
Mr Markides, Mr Shaw, Mr a_lar, Mrs Ak*ay, Mr Necatigil and Mr Golsong,
and also replies to its questions.
6. On 26 September 1995, Mr Macdonald decided, pursuant to Ruleθ24θσ
3 of Rules of Court A, to withdraw from the Grand Chamber. In accordance
with this Rule he informed the President who exempted him from sitting.
7. On 27 September 1995, the President received a request from the Turkish
Government that Judge Macdonald withdraw from the Chamber. The Court decided
that no response was called for in the light of Judge Macdonald's above-mentioned
decision to withdraw.
8. On 6 October 1995, the Cypriot Government submitted various court
decisions to which reference had been made at the public hearing.
9. Following the publication by the Committee of Ministers of the Commission's
report in Chrysostomos and Papachrysostomou v. Turkey, the President requested,
by letter of 19 October 1995, the applicant and the Government of Cyprus
to submit any comments they wished to make. On 6 November, they filed supplementary
observations. On 23θNovember the Turkish Government submitted a reply.
10. On 3 November 1995 the Turkish Government submitted an article to
which reference had been made at the public hearing.
11. The applicant, a Cypriot national, grew up in Kyrenia in northern
Cyprus. In 1972 she married and moved with her husband to Nicosia.
12. She claims to be the owner of plots of land nos.θ4609, 4610, 4618,
4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus
and she alleges that prior to the Turkish occupation of northern Cyprus
on 20 July 1974, work had commenced on plot no.θ5390 for the construction
of flats, one of which was intended as a home for her family. Her ownership
of the properties is attested by certificates of registration issued by
the Cypriot Lands and Surveys Department at the moment of acquisition.
She states that she has been prevented in the past, and is still prevented,
by Turkish forces from returning to Kyrenia and "peacefully enjoying"
her property.
13. On 19 March 1989 the applicant participated in a march organised
by a women's group ("Women Walk Home" movement) in the village
of Lymbia near the Turkish village of Ak_nc_lar in the occupied area of
northern Cyprus. The aim of the march was to assert the right of Greek
Cypriot refugees to return to their homes.
Leading a group of fifty marchers she advanced up a hill towards the
Church of the Holy Cross in the Turkish-occupied part of Cyprus passing
the United Nations' guard post on the way. When they reached the churchyard
they were surrounded by Turkish soldiers and prevented from moving any
14. She was eventually detained by members of the Turkish Cypriot police
force and brought by ambulance to Nicosia. She was released around midnight,
having been detained for more than ten hours.
15. In his report of 31 May 1989 (Security Council documentθS/20663)
on the United Nations Operation in Cyprus (for the period 1θDecemberθ1988
- 31 May 1989) the Secretary-General of the United Nations described the
demonstration of 19 March 1989 as follows (at paragraph 11): "In March
1989, considerable tension occurred over the well-publicized plans of a
Greek Cypriot women's group to organize a large demonstration with the
announced intention of crossing the Turkish forces cease-fire line. In
this connection it is relevant to recall that, following violent demonstrations
in the United Nations buffer-zone in Novemberθ1988, the Government of Cyprus
had given assurances that it would in future do whatever was necessary
to ensure respect for the buffer-zone ... Accordingly, UNFICYP asked the
Government to take effective action to prevent any demonstrators from entering
the buffer-zone, bearing in mind that such entry would lead to a situation
that might be difficult to control. The demonstration took place on 19θMarch
1989. An estimated 2,000θwomen crossed the buffer-zone at Lymbia and some
managed to cross the Turkish forces' line. A smaller group crossed that
line at Akhna. At Lymbia, a large number of Turkish Cypriot women arrived
shortly after the Greek Cypriots and mounted a counter demonstration, remaining
however on their side of the line. Unarmed Turkish soldiers opposed the
demonstrators and, thanks largely to the manner in which they and the Turkish
Cypriot police dealt with the situation, the demonstration passed without
serious incident. Altogether, 54θdemonstrators were arrested by Turkish
Cypriot police in the two locations; they were released to UNFICYP later
the same day."
Turkish military presence in Northern Cyprus
16. Turkish armed forces of more than 30,000 personnel are stationed
throughout the whole of the occupied area of northern Cyprus, which is
constantly patrolled and has checkpoints on all main lines of communication.
The Army's headquarters are in Kyrenia. The 28thθInfantry Division is based
in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb
of Nicosia and with about 14,500 personnel. The 39th Infantry Division,
with about 15,500θpersonnel, is based at Myrtou village, and its sector
ranges from Yerolakkos Village to Lefka. TOURDYK (Turkish Forces in Cyprus
under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia,
with a sector running from Nicosia International Airport to the Pedhieos
River. A Turkish Naval Command and outpost are based at Famagusta and Kyrenia
respectively. Turkish Airforce personnel are based at Lefkoniko, Krini
and other airfields. The Turkish Airforce is stationed on the Turkish mainland
at Adana.
17. The Turkish Forces and all civilians entering military areas are
subject to Turkish military courts, stipulated so far as concerns "TRNC
citizens" by the Prohibited Military Areas Decree of 1979 (sectionθ9)
and Article 156 of the Constitution of the "TRNC".
Article 159(1)(b) of the "TRNC" Constitution
18. Article 159(1)(b) of the 7 May 1985 Constitution of the "Turkish
Republic of Northern Cyprus" (the "TRNC") provides, where
relevant, as follows:
"All immovable properties, buildings and installations which were
found abandoned on 13 February 1975 when the Turkish Federated State of
Cyprus was proclaimed or which were considered by law as abandoned or ownerless
after the above-mentioned date, or which should have been in the possession
or control of the public even though their ownership had not yet been determined
... and ... situated within the boundaries of the TRNC on 15 November 1983,
shall be the property of the TRNC notwithstanding the fact that they are
not so registered in the books of the Land Registry Office; and the Land
Registry Office shall be amended accordingly."
The international response to the establishment of the "TRNC"
19. On 18 November 1983, in response to the proclamation of the establishment
of the "TRNC", the United Nations Security Council adopted Resolution
541 (1983) which provides, where relevant, as follows:
"The Security Council ...
1. Deplores the declaration of the Turkish Cypriot authorities of the
purported secession of part of the Republic of Cyprus;
2. Considers the declaration ... as legally invalid and calls for its
withdrawal; ...
6. Calls upon all States to respect the sovereignty, independence, territorial
integrity and non-alignment of the Republic of Cyprus;
7. Calls upon all States not to recognise any Cypriot State other than
the Republic of Cyprus."
20. Resolution 550 (1984), adopted on 11 May 1984, in response to the
exchange of "ambassadors" between Turkey and the "TRNC"
stated inter alia:
1. Reaffirms its resolution 541 (1983) and calls for its urgent and
effective implementation; 2. Condemns all secessionist actions, including
the purported exchange of ambassadors between Turkey and the Turkish Cypriot
leadership, declares them illegal and invalid and calls for their immediate
3. Reiterates the call upon all States not to recognise the purported
State of the "Turkish Republic of Northern Cyprus" set up by
secessionist acts and calls upon them not to facilitate or in any way assist
the aforesaid secessionist entity;
4. Calls upon all States to respect the sovereignty, independence, territorial
integrity, unity and non-alignment of the Republic of Cyprus..."
21. In November 1983, the Committee of Ministers of the Council of Europe
decided that it continued to regard the Government of the Republic of Cyprus
as the sole legitimate Government of Cyprus and called for the respect
of the sovereignty, independence, territorial integrity and unity of the
Republic of Cyprus.
22. On 16 November 1983 the European Communities issued the following
"The ten Member States of the European Community are deeply concerned
by the declaration purporting to establish a 'Turkish Republic of Northern
Cyprus' as an independent State. They reject this declaration, which is
in disregard of successive resolutions of the United Nations. The Ten reiterate
their unconditional support for the independence, sovereignty, territorial
integrity and unity of the Republic of Cyprus. They continue to regard
the Government of President Kyprianou as the sole legitimate Government
of the Republic of Cyprus. They call upon all interested parties not to
recognize this act, which creates a very serious situation in the area."
23. The Commonwealth Heads of Government, meeting in New Delhi from
23-29 November 1983, issued a press communique stating, inter alia, as
"[The] Heads of Government condemned the declaration by the Turkish
Cypriot authorities issued on 15 November 1983 to create a secessionist
state in northern Cyprus, in the area under foreign occupation. Fully endorsing
Security Council Resolution 541, they denounced the declaration as legally
invalid and reiterated the call for its non-recognition and immediate withdrawal.
They further called upon all states not to facilitate or in any way assist
the illegal secessionist entity. They regarded this illegal act as a challenge
to the international community and demanded the implementation of the relevant
UN Resolutions on Cyprus." D. Turkish declaration of 22 January 1990
under Article 46 of the Convention
24. On 22 January 1990, the Turkish Minister for Foreign Affairs deposited
the following declaration with the Secretary General of the Council of
Europe pursuant to Articleθ46 of the Convention:
"On behalf of the Government of the Republic of Turkey and acting
in accordance with Article 46 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in accordance with Article
46 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms, hereby recognises as compulsory ipso facto and without special
agreement the jurisdiction of the European Court of Human Rights in all
matters concerning the interpretation and application of the Convention
which relate to the exercise of jurisdiction within the meaning of Article
1 of the Convention, performed within the boundaries of the national territory
of the Republic of Turkey, and provided further that such matters have
previously been examined by the Commission within the power conferred upon
it by Turkey.
This Declaration is made on condition of reciprocity, including reciprocity
of obligations assumed under the Convention. It is valid for a period of
3 years as from the date of its deposit and extends to matters raised in
respect of facts, including judgments which are based on such facts which
have occurred subsequent to the date of deposit of the present Declaration."
25. The above declaration was renewed for a period of three years as
from 22 January 1993 in substantially the same terms.
26. Mrs Loizidou lodged her application (no. 15318/89) on 22θJulyθ1989.
She complained that her arrest and detention involved violations of Articles
3, 5 and 8 of the Convention. She further complained that the refusal of
access to her property constituted a continuing violation of Article 8
of the Convention and Article 1 of Protocol No. 1. 27. On 4 March 1991
the Commission declared the applicant's complaints admissible in so far
as they raised issues under Articlesθ3, 5 and 8 in respect of her arrest
and detention andθArticle 8 and Article 1 of Protocol No. 1 concerning
continuing violations of her right of access to property alleged to have
occurred subsequent to 29θJanuary 1987. Her complaint under the latter
two provisions of a continuing violation of her property rights before
29 January 1987 was declared inadmissible.
In its report of 8 July 1993 (Article 31), it expressed the opinion
that there had been no violation of Article 3 (unanimously); Article 8
as regards the applicant's private life (eleven votes to two); Article
5 σ 1 (nine votes to four); Article 8 as regards the applicant's home (nine
votes to four) and Article 1 of Protocol No. 1 (eight votes to five). The
full text of the Commission's opinion and of the three separate opinions
contained in the report is reproduced as an annex to this judgment.
28. In her memorial, the applicant requested the Court to decide and
1. that the respondent State was responsible for the continuing violations
of Article 1 of Protocol No. 1;
2. that the respondent State is responsible for the continuing violations
of Article 8;
3. that the respondent State is under a duty to provide just satisfaction
in accordance with the provisions of Article 50 of the Convention;
4. that the respondent State is under a duty to permit the applicant
to exercise her rights, in accordance with the findings of violations of
the Protocol and Convention, freely in the future.
29. The Cypriot Government submitted that:
1. the Court has jurisdiction ratione temporis to deal with the applicant's
case because Turkey's declaration under Articleθ46 of the Convention did
not clearly exclude competence in respect of violations examined by the
Commission after the Turkish declaration of 22 January 1990. Turkey is
thus liable for the continuing violations complained of by the applicant
in the period since 28 January 1987; 2. in any event Turkey is liable for
those violations continuing in the period since 22 January 1990 and which
have been examined by the Commission;
3. there is a permanent state of affairs, still continuing, in the Turkish-occupied
area, which is in violation of the applicant's rights under Article 8 and
Article 1 of ProtocolθNo. 1.
30. In their memorial, the Turkish Government made the following submissions:
1. the applicant was irreversibly deprived of her property situated
in northern Cyprus by an act of the "Government of the Turkish Republic
of Northern Cyprus", on 7 May 1985, at the latest;
2. the act referred to under (1) above does not constitute an act of
"jurisdiction" by Turkey within the meaning of Articleθ1 of the
3. Turkey has not violated the rights of the applicant under Article
8 of the Convention.
31. The applicant and the Cypriot Government maintained that ever since
the Turkish occupation of northern Cyprus the applicant had been denied
access to her property and had, consequently, lost all control over it.
In their submission this constituted a continued and unjustified interference
with her right to the peaceful enjoyment of property in breach of Article
1 of ProtocolθNo.θ1 as well as a continuing violation of the right to respect
for her home under Articleθ8 of the Convention.
The Turkish Government contested this allegation and maintained primarily
that the Court lacked jurisdiction ratione temporis to examine it.
32. The Court recalls its findings in the preliminary objections judgment
in the present case that it is open to Contracting Parties under Article
46 of the Convention to limit, as Turkey has done in its Declaration of
22 January 1990, the acceptance of the jurisdiction of the Court to facts
which occur subsequent to the time of deposit and that, consequently, the
Court's jurisdiction only extends to the applicant's allegation of a continuing
violation of her property rights subsequent to 22 January 1990. It must
now examine that allegation since in the above-mentioned judgment it decided
to join the questions raised by the objection ratione temporis to the merits
(see the Loizidou v. Turkey (Preliminary Objections) judgment of 23 March
1995, Series A no. 310, pp. 33-34, σσθ102-105). A. The wording of the Article
46 Declaration
33. In their memorial on the merits, the Cypriot Government submitted
that Turkey's Article 46 Declaration was ambiguously worded. The absence
of a comma in the final sentence after the word "facts", where
it occurs for the second time, made it unclear whether the words "which
have occurred subsequent to the date of deposit" qualified "facts"
(when first used) or "judgments" (see paragraph 24 above). The
same observation was made as regards the Government's Article 25 Declarations.
In their submission, all Convention enforcement organs, which have jurisdiction
conferred upon them, enjoy jurisdiction retroactively to the time of ratification
of the Convention unless there has been an express and unambiguously worded
restriction ratione temporis . However, the latter requirement, they claimed,
was not satisfied in the present case.
34. The Court sees no merit in this argument. In its view the reading
of the present text in the manner contended by the Cypriot Government would
render the last sentence of the declaration almost unintelligible. It considers
that the intention of the Turkish Government to exclude from the Court's
jurisdiction all matters raised in respect of facts which occurred prior
to the date of deposit of the Articleθ46 declaration is sufficiently evident
from the words used in the last sentence and can be reasonably be inferred
from them. Moreover, it notes that the Commission has construed in a similar
fashion identical language and punctuation in Turkey's Article 25 Declarations
(see the decision of admissibility in applications nos.θ15299/89, 15300/89
and 15318/89 (joined), Chrysostomos, Papachrysostomou and Loizidou v. Turkey,
4 March 1991, Decisions and Reports (DR) 68, σσ 50-60, pp. 250-251).
Further arguments of those appearing before the Court
35. The Turkish Government, for their part, contended that the process
of the "taking" of property in northern Cyprus started in 1974
and ripened into an irreversible expropriation by virtue of Articleθ159(1)(b)
of the "TRNC" Constitution of 7 May 1985 (see paragraph 18 above)
justified under the international law doctrine of necessity. In this context
they contended that the "TRNC" is a democratic and constitutional
state whose Constitution was accepted by a referendum. Following a process
of political and administrative evolution, the "TRNC" was established
by the Turkish Cypriot people in pursuance of their right to self-determination
and thus was able to make valid law. Moreover, the effectual and autonomous
nature of the administration in the northern part of Cyprus had been recognised
in various court decisions in the United Kingdom (Hesperides Hotels Ltd
and Another v. Aegean Turkish Holidays Ltd and Another (1977) 3 Weekly
Law Reports 656 (Court of Appeal) and Polly Peck International Plc v. Asil
Nadir and Others (1992) 2 All England Reports 238 (Court of Appeal)). Furthermore,
in finding that the arrest and detention of the applicants in the case
of Chrysostomos and Papachrysostomou v. Turkey were lawful, the Commission
and subsequently the Committee of Ministers of the Council of Europe had
recognised as valid the relevant laws of the "TRNC" (see Report
of the Commission of 8 July 1993, σσ 143-170 and Resolution DH (95) 245
of 19 October 1995).
In the Turkish Government's submission, the applicant had thus definitively
lost ownership of the land well before the crucial date of 22 January 1990,
viz. on 7 May 1985 at the latest. The judgment of the Court in the Papamichalopoulos
and Others v. Greece case (of 24θJune 1993, SeriesθA no.θ260ΨB), where
the Court had found that there had been a continuing interference with
the applicant's property rights, was moreover distinguishable on the ground
that the Greek Government had not raised any objection ratione temporis
in that case.
It followed, in their submission, that the Court was concerned in the
present case with an instantaneous act which predated the Government's
acceptance of the Court's jurisdiction under Article 46. It was thus incompetent
ratione temporis to examine the applicant's complaints.
36. The applicant, whose submissions were endorsed by the Government
of Cyprus, maintained that the fact that she had been denied access to
her property ever since 1974 and, consequently, had lost all control over
it constituted a continuing violation of her rights and that the jurisprudence
of the Convention institutions and other international tribunals recognised
this concept. She stressed that the rules of international law must be
taken into account when interpreting the Convention and contended that
the 1985 Constitution of the "TRNC" was - as was recognised by
the international community - invalid under international law, because
its origin lay in the illegal use of force by Turkey. A second reason was
that the policy of the Turkish authorities was based upon racial discrimination
in breach of Articleθ14 of the Convention and of customary international
law. Accordingly, no effect should be given to the confiscatory provisions
of the 1985 Constitution.
37. In the submission of the Government of Cyprus, the denial of peaceful
enjoyment of the possessions of Greek Cypriots in the occupied area has
been effected by a systematic and continuing process. They denied, however,
that this process had amounted to loss of ownership. Evidence for this
contention was provided by the Settlement and Distribution of Land and
Property of Equivalent Value Law of 28 August 1995 which, according to
the Government, purports to extend what were hitherto limited permits to
occupy Greek property and by the fact that Turkey alleged that there had
been no confiscation of Greek property in northern Cyprus in a memorial
circulated within the Committee of Ministers in 1987. 38. As explained
by the Commission's Delegate at the hearing on the preliminary objections,
the Commission also considered that the applicant's complaints under Article
1 of Protocol No. 1 and Articleθ8 of the Convention concerned violations
which were essentially of a continuing nature. In his written observations
on the preliminary objections, the Delegate had therefore taken the view
that the Court has competence to deal with these complaints as far as they
involved the period after 22 January 1990. Moreover, at the hearing on
the merits the Delegate, with the endorsement of the applicant, asked the
Court to consider whether Turkey should be estopped from introducing new
facts relating to the provisions of the 1985 Constitution which had not
been referred to during the proceedings before the Commission.
B. The Court's assessment
39. The Court first observes, as regards the estoppel submission, that
in principle it is not prevented in its examination of the merits of a
complaint from having regard to new facts, supplementing and clarifying
those established by the Commission, if it considers them to be of relevance
(see the McMichael v. the United Kingdom judgment of 24θFebruary 1995,
Series A no. 307-B, p. 51, σ 73 and the Gustafsson v. Sweden judgment of
25 April 1996, Reports 1996ΨI, p. ..., σ 51).
40. Although in the present case the objection ratione temporis was
raised by the Turkish Government in the proceedings before the Commission,
there was no discussion or analysis in its admissibility decision of 4
March 1991 as to whether the matters complained of involved a continuing
situation or an instantaneous act. This point, although touched on to some
extent before the Court at the preliminary objections phase, was the subject
of detailed submissions only in the proceedings on the merits, the new
information being mentioned for the first time in the Turkish Government's
written memorial but also in the appendices to the Cypriot Government's
memorial. Against this background, the plea of estoppel must fail.
41. The Court recalls that it has endorsed the notion of a continuing
violation of the Convention and its effects as to temporal limitations
of the competence of Convention organs (see, inter alia, the Papamichalopoulos
and Others v. Greece judgment of 24 June 1993, Series A no. 260-B, pp.
20-21, σ 46, and the Agrotexim and Others v. Greece judgment of 24 October
1995, Series A no. 330, p. 22, σ 58).
Accordingly, the present case concerns alleged violations of a continuing
nature if the applicant, for purposes of Article 1 of Protocol No. 1 and
Article 8 of the Convention, can still be regardedθΨ as remains to be examined
by the Court - as the legal owner of the land. 42. It has had regard to
the Turkish Government's allegation that "the process of 'the taking'
of property in northern Cyprus started in 1975 and ripened into an irreversible
expropriation by virtue of Article 159 of the "TRNC" Constitution
of 7 May 1985 (see paragraphθ35 above). The formulation of this assertion
suggests that in the Turkish Government's view the applicant had not lost
ownership of the land before 7 May 1985; if it should be understood differently,
the Turkish Government have failed to clarify in what manner the loss of
ownership occurred before that date. The Court will therefore concentrate
on the Government's submission that ownership was lost in 1985 as a result
of the operation of Article 159 of the "TRNC" Constitution (seeθparagraphθ18
In this context the Court takes note of United Nations Security Council
Resolution 541 (1983) declaring the proclamation of the establishment of
the "TRNC" as legally invalid and calling upon all States not
to recognise any Cypriot State other than the Republic of Cyprus. A similar
call was reiterated by the Security Council in Resolution 550 (adopted
on 11 May 1984). The Committee of Ministers of the Council of Europe in
a Resolution of 24 November 1983 also condemned the proclamation of statehood
and called upon all States to deny recognition to the "TRNC"
(see paragraphs 19-21 above). A position to similar effect was taken by
the European Community and the Commonwealth Heads of Government (see paragraphs
22-23 above). Moreover it is only the Cypriot Government which is recognised
internationally as the Government of the Republic of Cyprus in the context
of diplomatic and treaty relations and the working of international organisations
(see the Commission's decisions on the admissibility of applications nos.θ6780/74
and 6950/75, Cyprus v. Turkey, 26 May 1975, DR 2, p. 125, at pp. 135-136;
no. 8007/77, Cyprus v. Turkey, 10 July 1978, DR 13, p.θ85, at p.θ146).
43. It is recalled that the Convention must be interpreted in the light
of the rules of interpretation set out in the Vienna Convention of 23 May
1969 on the Law of Treaties and that Article 31 σ 3 (c) of that treaty
indicates that account is to be taken of "any relevant rules of international
law applicable in the relations between the parties" (see, inter alia,
the Golder v. the United Kingdom judgment of 21 February 1975, Series A
no. 18, p. 14, σ 29, the Johnston and Others v. Ireland judgment of 18
December 1986, Series A no. 112, p.θ24, σ 51, and the above-mentioned Loizidou
(Preliminary Objections) judgment, p. 27, σ 73).
In the Court's view, the principles underlying the Convention cannot
be interpreted and applied in a vacuum. Mindful of the Convention's special
character as a human rights treaty, it must also take into account any
relevant rules of international law when deciding on disputes concerning
its jurisdiction pursuant to Articleθ49 of the Convention.
44. In this respect it is evident from international practice and the
various, strongly worded resolutions referred to above (see paragraph 42)
that the international community does not regard the "TRNC" as
a State under international law and that the Republic of Cyprus has remained
the sole legitimate Government of Cyprus - itself, bound to respect international
standards in the field of the protection of human and minority rights.
Against this background the Court cannot attribute legal validity for purposes
of the Convention to such provisions as Articleθ159 of the fundamental
law on which the Turkish Government rely.
45. The Court confines itself to the above conclusion and does not consider
it desirable, let alone necessary, in the present context to elaborate
a general theory concerning the lawfulness of legislative and administrative
acts of the "TRNC". It notes, however, that international law
recognises the legitimacy of certain legal arrangements and transactions
in such a situation, for instance as regards the registration of births,
deaths and marriages, "the effects of which can be ignored only to
the detriment of the inhabitants of the [t]erritory" (see, in this
context, Advisory Opinion on Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolutionθ276 (1970), [1971] International Court of Justice
Reportsθ16, p. 56, σθ125).
46. Accordingly, the applicant cannot be deemed to have lost title to
her property as a result of Article 159 of the 1985 Constitution of the
"TRNC". No other facts entailing loss of title to the applicant's
properties have been advanced by the Turkish Government nor found by the
Court. In this context the Court notes that the legitimate Government of
Cyprus have consistently asserted their position that Greek Cypriot owners
of immovable property in the northern part of Cyprus such as the applicant
have retained their title and should be allowed to resume free use of their
possessions, whilst the applicant obviously has taken a similar stance.
47. It follows that the applicant, for the purposes of Article 1 of
Protocol No. 1 and Article 8 of the Convention, must still be regarded
to be the legal owner of the land. The objection ratione temporis therefore
48. The applicant contended that the continuous denial of access to
her property in northern Cyprus and the ensuing loss of all control over
it is imputable to the Turkish Government and constitutes a violation of
Articleθ1 of Protocol No. 1, which reads as follows: "Every natural
or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary to control the use
of property in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties."
A. The imputability issue
49. The applicant insisted, in line with her submissions concerning
the preliminary objection ratione materiae (Loizidou v. Turkey (Preliminary
Objections), cited above at paragraph 32, pp. 22-23, σσθ57-58), that the
present case was exceptional in that the authorities alleged to have interfered
with the right to the peaceful enjoyment of possessions are not those of
the sole legitimate Government of the territory in which the property is
situated. That particularity entailed that in order to determine whether
Turkey is responsible for the alleged violation of her rights under Article
1 of Protocol No. 1 with respect to her possessions in northern Cyprus,
the Court should take into account the principles of State responsibility
under international law. In this context she repeated her criticism that
the Commission had focused too much on the direct involvement of Turkish
officials in the impugned continuous denial of access. Whilst evidence
of direct involvement of Turkish officials in violations of the Convention
is relevant, it is not a legal condition of responsibility under public
international law.
She went on to contend that the concept of State responsibility rested
on a realistic notion of accountability. A State was responsible in respect
of events in the area for which it is internationally responsible, even
if the conduct or events were outside its actual control. Thus, even acts
of officials which are ultra vires may generate State responsibility.
According to international law, in the applicant's submission, the State
which is recognised as accountable in respect of a particular territory
remained accountable even if the territory is administered by a local administration.
This was the legal position whether the local administration is illegal,
in that it is the consequence of an illegal use of force, or whether it
is lawful, as in the case of a protected State or other dependency. A State
cannot by delegation avoid responsibility for breaches of its duties under
international law, especially not for breaches of its duties under the
Convention which, as illustrated by the wording of Article 1 of the Convention,
involve a guarantee to secure Convention rights. She maintained that the
creation of the "TRNC" was legally invalid and no State, except
Turkey, or international organisation has recognised it. Since the Republic
of Cyprus obviously cannot be held accountable for the part of the island
occupied by Turkey, it must be Turkey which is so accountable. Otherwise
the northern part of Cyprus would constitute a vacuum as regards responsibility
for violations of human rights, the acceptance of which would be contrary
to the principle of effectiveness which underlies the Convention. In any
case there is overwhelming evidence that Turkey has effective overall control
over events in the occupied area. She added that the fact that the Court,
at the preliminary objections phase of the present case, had found Turkey
to have jurisdiction created a strong presumption of Turkish responsibility
for violations occurring in the occupied area.
50. According to the Cypriot Government, Turkey is in effective military
and political control of northern Cyprus. It cannot escape from its duties
under international law by pretending to hand over the administration of
northern Cyprus to an unlawful "puppet" regime.
51. The Turkish Government denied that it had jurisdiction in northern
Cyprus within the meaning of Article 1 of the Convention. In the first
place they recalled the earlier case-law of the Commission which limited
the jurisdiction of Turkey "to the border area and not to the whole
of northern Cyprus under the control of the Turkish Cypriot authorities"
(see the Commission's decisions on the admissibility of applications nos.θ6780/74,
6950/75 and 8007/77, cited in paragraph 42 above). In the second place,
the presumption of control and responsibility argued for by the applicants
was rebuttable. In this respect it was highly significant that the Commission
in the Chrysostomos and Papachrysostomou v. Turkey report of 8 July 1993
found that the applicants' arrest, detention and trial in northern Cyprus
were not "acts" imputable to Turkey. Moreover, the Commission
found no indication of control exercised by the Turkish authorities over
the prison administration or the administration of justice by Turkish Cypriot
authorities in the applicant's case (cited above at paragraphθ32).
In addition, the Turkish Government contended that the question of jurisdiction
in Article 1 of the Convention is not identical with the question of State
responsibility under international law. Articleθ1 was not couched in terms
of State responsibility. In their submission this provision required proof
that the act complained of was actually committed by an authority of the
defendant State or occurred under its direct control and that this authority
at the time of the alleged violation exercised effective jurisdiction over
the applicant.
Furthermore they argued that seen from this angle, Turkey had not in
this case exercised effective control and jurisdiction over the applicant
since at the critical date of 22θJanuary 1990 the authorities of the Turkish
Cypriot community, constitutionally organised within the "TRNC"
and in no way exercising jurisdiction on behalf of Turkey, were in control
of the property rights of the applicant. In this context they again emphasised
that the "TRNC" is a democratic and constitutional State which
is politically independent of all other sovereign States including Turkey.
The administration in northern Cyprus has been set up by the Turkish Cypriot
people in the exercise of its right to self-determination and not by Turkey.
Moreover, the Turkish forces in northern Cyprus are there for the protection
of the Turkish Cypriots and with the consent of the ruling authority of
the "TRNC". Neither the Turkish forces nor the Turkish Government
in any way exercise governmental authority in northern Cyprus. Furthermore,
in assessing the independence of the "TRNC" it must also be borne
in mind that there are political parties as well as democratic elections
in northern Cyprus and that the Constitution was drafted by a constituent
assembly and adopted by way of referendum.
52. As regards the question of imputability, the Court recalls in the
first place that in its above-mentioned Loizidou v. Turkey (Preliminary
Objections) judgment (pp.θ23-24, σ 62) it stressed that under its established
case-law the concept of "jurisdiction" under Article 1 of the
Convention is not restricted to the national territory of the Contracting
States. Accordingly, the responsibility of Contracting States can be involved
by acts and omissions of their authorities which produce effects outside
their own territory. Of particular significance to the present case the
Court held, in conformity with the relevant principles of international
law governing State responsibility, that the responsibility of a Contracting
Party could also arise when as a consequence of military action - whether
lawful or unlawful - it exercises effective control of an area outside
its national territory. The obligation to secure, in such an area, the
rights and freedoms set out in the Convention, derives from the fact of
such control whether it be exercised directly, through its armed forces,
or through a subordinate local administration (see the above-mentioned
Loizidou v. Turkey (Preliminary Objections) judgment, ibid.).
53. In the second place, the Court emphasises that it will concentrate
on the issues raised in the present case, without, however, losing sight
of the general context.
54. It is important for the Court's assessment of the imputability issue
that the Turkish Government have acknowledged that the applicant's loss
of control of her property stems from the occupation of the northern part
of Cyprus by Turkish troops and the establishment there of the "TRNC"
(see the above-mentioned preliminary objections judgment, p. 24, σ 63).
Furthermore, it has not been disputed that the applicant has on several
occasions been prevented by Turkish troops from gaining access to her property
(see paragraphsθ12Ψ13 above).
However, throughout the proceedings the Turkish Government have denied
State responsibility for the matters complained of, maintaining that its
armed forces are acting exclusively in conjunction with and on behalf of
the allegedly independent and autonomous "TRNC" authorities.
55. The Court recalls that under the scheme of the Convention the establishment
and verification of the facts is primarily a matter for the Commission
(Articles 28 σ 1 and 31). It is not, however, bound by the Commission's
findings of fact and remains free to make its own appreciation in the light
of all the material before it (see, inter alia, the Cruz Varas and Others
v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, σ 74, the
Klaas v. Germany judgment of 22θSeptember 1993, Series A no. 269, p.θ17,
σθ29, and the McCann and Others v. the United Kingdom judgment of 27 September
1995, Series A no. 324, p. 50, σ 168).
56. The Commission found that the applicant has been and continues to
be denied access to the northern part of Cyprus as a result of the presence
of Turkish forces in Cyprus which exercise an overall control in the border
area (see the Report of the Commission of 8 July 1993, p. 16, σσ 93-95).
The limited ambit of this finding of "control" must be seen in
the light of the Commission's characterisation of the applicant's complaint
as essentially concerning freedom of movement across the buffer-zone (see
paragraphs 59 and 61 below). The Court, however, must assess the evidence
with a view to determining the issue whether the continous denial of access
to her property and the ensuing loss of all control over it is imputable
to Turkey.
It is not necessary to determine whether, as the applicant and the Government
of Cyprus have suggested, Turkey actually exercises detailed control over
the policies and actions of the authorities of the "TRNC" It
is obvious from the large number of troops engaged in active duties in
northern Cyprus (see paragraph 16 above) that her army exercises effective
overall control over that part of the island. Such control, according to
the relevant test and in the circumstances of the case, entails her responsibility
for the policies and actions of the "TRNC" (see paragraph 52
above). Those affected by such policies or actions therefore come within
the "jurisdiction" of Turkey for the purposes of Articleθ1 of
the Convention. Her obligation to secure to the applicant the rights and
freedoms set out in the Convention therefore extends to the northern part
of Cyprus.
In view of this conclusion the Court need not pronounce itself on the
arguments which have been adduced by those appearing before it concerning
the alleged lawfulness or unlawfulness under international law of Turkey's
military intervention in the island in 1974 since, as noted above, the
establishment of State responsibility under the Convention does not require
such an enquiry (see paragraph 52 above). It suffices to recall in this
context its finding that the international community considers that the
Republic of Cyprus is the sole legitimate Government of the island and
has consistently refused to accept the legitimacy of the "TRNC"
as a State within the meaning of international law (see paragraph 44 above).
57. It follows from the above considerations that the continuous denial
of the applicant's access to her property in northern Cyprus and the ensuing
loss of all control over the property is a matter which falls within Turkey's
"jurisdiction" within the meaning of Article 1 and is thus imputable
to Turkey. B. Interference with property rights
58. The applicant and the Cypriot Government emphasised that, contrary
to the Commission's interpretation, the complaint is not limited to access
to property but is much wider and concerns a factual situation: because
of the continuous denial of access the applicant had effectively lost all
control, as well as all possibilities to use, to sell, to bequeath, to
mortgage, to develop and to enjoy her land. This situation, they contended,
could be assimilated to a de facto expropriation within the meaning of
the Court's case-law. They denied that there had been a formal expropriation,
but added that if and in so far as there had been attempts at formal expropriation
the relevant enactments should be disregarded as being incompatible with
international law.
59. For the Turkish Government and the Commission the case only concerns
access to property, and the right to the peaceful enjoyment of possessions
does not include as a corollary a right to freedom of movement.
The Turkish Government further submitted that if the applicant was held
to have absolute freedom of access to her property, irrespective of the
de facto political situation on the island, this would undermine the intercommunal
talks, which were the only appropriate way of resolving this problem.
60. The Court first observes from the Commission's decision on admissibility
that the applicant's complaint under Article 1 of Protocol No. 1 was not
limited to the question of physical access to her property. Her complaint,
as set out in the application form to the Commission, was that Turkey,
by refusing her access to property "has gradually, over the last sixteen
years, affected the right of the applicant as a property owner and in particular
her right to a peaceful enjoyment of her possessions, thus constituting
a continuing violation of Article 1" (see the Report of the Commission
of 8 July 1993, p. 21 and the decision of admissibility in Chrysostomos,
Papachrysostomou and Loizidou v. Turkey, DR 68, p. 228). Moreover it is
this complaint as formulated above that is addressed by the applicants
and the Turkish Government in both their written and oral submissions.
61. Seen in the above light, the Court cannot accept the characterisation
of the applicant's complaint as being limited to the right to freedom of
movement. Article 1 of Protocol No. 1 is thus applicable.
62. With respect to the question whether Article 1 is violated, the
Court first recalls its finding that the applicant, for purposes of this
Article, must be regarded to have remained the legal owner of the land
(see paragraphs 39-47 above).
63. However, as a consequence of the fact that the applicant has been
refused access to the land since 1974, she has effectively lost all control
as well as all possibilities to use and enjoy her property. The continuous
denial of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference cannot,
in the exceptional circumstances of the present case to which the applicant
and the Cypriot Government have referred (see paragraph 49-50 above), be
regarded as either a deprivation of property or a control of use within
the meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first sentence
of that provision as an interference with the peaceful enjoyment of possessions.
In this respect the Court observes that hindrance can amount to a violation
of the Convention just like a legal impediment (see, mutatis mutandis,
the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 14,
σ 25).
64. Apart from a passing reference to the doctrine of necessity as a
justification for the acts of the "TRNC" and to the fact that
property rights were the subject of intercommunal talks, the Turkish Government
have not sought to make submissions justifying the above interference with
the applicant's property rights which is imputable to Turkey.
It has not, however, been explained how the need to rehouse displaced
Turkish Cypriot refugees in the years following the Turkish intervention
in the island in 1974 could justify the complete negation of the applicant's
property rights in the form of a total and continuous denial of access
and a purported expropriation without compensation.
Nor can the fact that property rights were the subject of intercommunal
talks involving both communities in Cyprus provide a justification for
this situation under the Convention.
In such circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.
65. The applicant also alleged an unjustified interference with the
right to respect for her home in violation of Article 8 of the Convention,
paragraph 1 of which provides, inter alia, that:
"Everyone has the right to respect for ... his home..."
In this respect she underlined that she had grown up in Kyrenia where
her family had lived for generations and where her father and grandfather
had been respected medical practitioners. She conceded that after her marriage
in 1972 she had moved to Nicosia and had made her home there ever since.
However, she had planned to live in one ofθthe flats whose construction
had begun at the time of the Turkish occupation of northern Cyprus in 1974
(see paragraph 12 above). As a result, it had been impossible to complete
the work and subsequent events had prevented her from returning to live
in what she considered as her home town.
66. The Court observes that the applicant did not have her home on the
land in question. In its opinion it would strain the meaning of the notion
"home" in Article 8 to extend it to comprise property on which
it is planned to build a house for residential purposes. Nor can that term
be interpreted to cover an area of a State where one has grown up and where
the family has its roots but where one no longer lives.
Accordingly, there has been no interference with the applicant's rights
under Article 8.
67. Article 50 of the Convention provides as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is completely
or partially in conflict with the obligations arising from the ... Convention,
and if the internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure, the decision
of the Court shall, if necessary, afford just satisfaction to the injured
68. In her memorial the applicant outlined the following claims under
this head: (a) compensation for pecuniary damage - loss of income from
the land since January 1987: 531,900 Cyprus pounds; (b) compensation for
non-pecuniary damage - punitive damages to the same amount as claimed for
pecuniary damage; (c) to be allowed to exercise her rights under Article
1 of Protocol No. 1 freely in the future; and (d) a non-specified amount
in respect of costs and expenses.
In their memorial the Turkish Government have not commented on the issues
thus raised. Neither have these issues been discussed by those appearing
before the Court at its hearing on the merits.
69. Under these circumstances the Court, taking into account the exceptional
nature of the case, considers that the question of the application of Article
50 is not ready for decision. The question must accordingly be reserved
and the further procedure fixed with due regard to the possibility of agreement
being reached between the Turkish Government and the applicant. FOR THESE
1. Dismisses by eleven votes to six the preliminary objection ratione
2. Holds by eleven votes to six that the denial of access to the applicant's
property and consequent loss of control thereof is imputable to Turkey;
3. Holds by eleven votes to six that there has been a breach of Article
1 of Protocol No. 1;
4. Holds unanimously that there has been no violation of Articleθ8 of
the Convention;
5. Holds unanimously that the question of the application of Article
50 of the Convention is not ready for decision; and consequently,
(a) reserves the said question;
(b) invites the Turkish Government and the applicant to submit, within
the forthcoming six months, their written observations on the matter and,
in particular, to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President
of the Chamber the power to fix the same if need be.
(a) concurring opinion of Mr Wildhaber joined by Mr Ryssdal;
(b) dissenting opinion of Mr Bernhardt joined by Mr Lopes Rocha;
(c) dissenting opinion of Mr Baka;
(d) dissenting opinion of Mr Jambrek;
(e) dissenting opinion of Mr Pettiti;
(f) dissenting opinion of Mr Golcuklu.
There was no need for the Court to give an express answer to Turkey's
claim that the "TRNC" was established by the Turkish Cypriot
people in pursuance of their right to self-determination (see paragraph
35 of the judgment). That claim must indeed fail.
Until recently in international practice the right to self-determination
was in practical terms identical to, and indeed restricted to, a right
to decolonisation. In recent years a consensus has seemed to emerge that
peoples may also exercise a right to self-determination if their human
rights are consistently and flagrantly violated or if they are without
representation at all or are massively under-represented in an undemocratic
and discriminatory way. If this description is correct, then the right
to self-determination is a tool which may be used to re-establish international
standards of human rights and democracy.
In the instant case, the Court is faced with an applicant who alleges
violations of certain Convention guarantees; with the Respondent Turkish
Government which alleges a right to self-determination of the "TRNC"
in order to disclaim responsibility for a violation of certain Convention
guarantees; and with an international community which refuses to recognise
the entity which claims a right to self-determination (the "TRNC").
When the international community in 1983 refused to recognise the "TRNC"
as a new state under international law (see paragraph 42), it by the same
token implicitly rejected the claim of the "TRNC" to self-determination
in the form of secession. At that time the close connection between the
right to self-determination and the observance of international standards
with respect to human rights and democracy was not established to the same
extent as today. The "TRNC" is constituted by what was originally
a minority group in the whole of Cyprus (i.e. the "Turkish Cypriots")
but what is now the majority in the northern part of Cyprus. This group
invokes a right of self-determination which under the 1985 Constitution
is denied by them to the "Greek Cypriots" living in the territory
of the "TRNC". This leads me to the conclusion that where the
modern right to self-determination does not strengthen or re-establish
the human rights and democracy of all persons and groups involved, as it
does not in the instant case, it cannot be invoked to overcome the international
community's policy of non-recognition of the "TRNC".
I have voted for accepting the preliminary objection ratione temporis
and against the finding of a violation of Article 1 of Protocol No. 1.
Before I discuss the two main aspects of the case, some general remarks
are, in my view, indispensable.
1. A unique feature of the present case is that it is impossible to
separate the situation of the individual victim from a complex historical
development and a no less complex current situation. The Court's judgment
concerns in reality not only Mrs. Loizidou, but thousands or hundreds of
thousands of Greek Cypriots who have (or had) property in northern Cyprus.
It might also affect Turkish Cypriots who are prevented from visiting and
occupying their property in southern Cyprus. It might even concern citizens
of third countries who are prevented from travelling to places where they
have property and houses. The factual borderline between the two parts
of Cyprus has the deplorable and inhuman consequence that a great number
of individuals are separated from their property and their former homes.
I have, with the majority of the judges in the Grand Chamber, no doubt
that Turkey bears a considerable responsibility for the present situation.
But there are also other actors and factors involved in the drama. The
coup d'Etat of 1974 was the starting point. It was followed by the Turkish
invasion, the population transfer from north to south and south to north
on the island, and other events. The proclamation of the so-called "Turkish
Republic of Northern Cyprus", not recognised as a State by the international
community, is one of those events. The result of the different influences
and events is the "iron wall" which has existed now for more
than two decades and which is supervised by United Nations forces. All
negotiations or proposals for negotiations aimed at the unification of
Cyprus have failed up to now. Who is responsible for this failure? Only
one side? Is it possible to give a clear answer to this and several other
questions and to draw a clear legal conclusion?
The case of Mrs. Loizidou is not the consequence of an individual act
of Turkish troops directed against her property or her freedom of movement,
but it is the consequence of the establishment of the borderline in 1974
and its closure up to the present day.
2. Turkey has accepted the jurisdiction of the Court only in respect
of the facts which occurred subsequent to 22 January 1990. Such a limitation
excludes an inquiry into and final legal qualification of previous events,
even if these were incompatible with a State's obligation under the Convention.
The Convention organs have accepted the notion of "continuing violations",
violations which started prior to the critical date and which still continue.
I entirely agree with this concept, but its field of application and its
limits must be appreciated. If a person is kept in prison before and after
the critical date, if concrete property is illegally occupied before and
after that date (as in the Papamichalopoulos judgment of 24 June 1993,
Series A no. 260-B), there can be no doubt that it falls within the Court's
jurisdiction to examine facts and circumstances which have occurred after
the date in question. The essential fact in such cases is the actual behaviour
of State organs which is incompatible with the commitments under the European
Convention of Human Rights.
The factual and legal situation is in my view different when certain
historical events have given rise to a situation such as the closing of
a borderline with automatic consequences for a great number of cases. In
the present case, the decisive events date back to the year 1974. Since
that time, Mrs. Loizidou has not been able to visit her property in northern
Cyprus. This situation continued to exist before and after the adoption
of the Constitution of the so-called "Turkish Republic of Northern
Cyprus" of 1985 and the expropriation proclaimed therein. I share
the doubts of the Court (see paragraphs 45-47 of the judgment) concerning
the validity of the expropriation; however this is not decisive. Turkey
has recognised the jurisdiction of the Court only "in respect of facts
... which have occurred subsequent to the date of deposit of the present
declaration"; the closing of the borderline in 1974 is in my view
the material fact and the ensuing situation up to the present time should
not be brought under the notion of "continuing violation".
Therefore, the preliminary objection ratione temporis raised by Turkey
is in my view legally well-founded.
3. Even if I had been able to follow the majority of the Court in this
respect, I would still be unable to find a violation of Article 1 of Protocol
No. 1. As explained above, the presence of Turkish troops in northern Cyprus
is one element in an extremely complex development and situation. As has
been explained and decided in the Loizidou judgment on the preliminary
objections (23 March 1995, Series A no. 310), Turkey can be held responsible
for concrete acts done in northern Cyprus by Turkish troops or officials.
But in the present case, we are confronted with a special situation: it
is the existence of the factual borderline, protected by forces under United
Nations command, which makes it impossible for Greek Cypriots to visit
and to stay in their homes and on their property in the northern part of
the island. The presence of Turkish troops and Turkey's support of the
"TRNC" are important factors in the existing situation; but I
feel unable to base a judgment of the European Court of Human Rights exclusively
on the assumption that the Turkish presence is illegal and that Turkey
is therefore responsible for more or less everything that happens in northern
In the present case it is extremely difficult to determine whether,
on the one hand, the violation complained of by the applicant has been
a continuous one or whether, on the other hand, there has been an instantaneous
expropriation of the applicant's property with continuing effects. I agree
with the majority that the answer to this question has direct consequences
for deciding the Government's preliminary objection ratione temporis.
On the basis of the facts of the case, I have come to the conclusion
that Mrs Loizidou lost overall control of her property as a direct consequence
of the Turkish military action in 1974. Since that time she has not been
able to possess, to use and enjoy her property in any way nor even have
access to it. It can thus be said that there has been a form of de facto
However, between the period 1974 and 1985 the applicant still held legal
title to her land. She purportedly lost ownership by the formal act of
expropriation pursuant to Articles 159(1) of the "TRNC" Constitution
of 7 May 1985 which sought to regularise the existing de facto situation.
Although I share the view of the Court concerning the non-recognition
of the "TRNC" by the international legal community and the legal
consequences flowing from this, I am also of the opinion that its legal
provisions "have been invoked by the Turkish Government". In
the instant case the legal situation in respect of property issues is very
close to those of the former communist states in Central and Eastern Europe.
In those countries - which, it must be borne in mind, were internationally
recognised states - there had been a long process of expropriation of property
by nationalisation legislation and other legal means. These actions, which
led to enormous property rearrangements in the countries concerned, cannot
always be justified by simply referring to the fact that those States had
been recognised by the international community at the relevant time.
On the other hand, Article 159 of the "TRNC" Constitution
and certain other legal provisions cannot be completely set to one side
as devoid of all effect merely on the basis of the international non- recognition
of the entity in northern Cyprus. It is rightly said in paragraph 45 of
the judgment that international law recognises the legitimacy of certain
arrangements and transactions in such a situation the "effects of
which can be ignored only to the detriment of the inhabitants of the territory".
The full implications of this view, however, - as the recent and very different
legal arrangements in the former communist states as regards property matters
clearly show - are still very much open to interpretation. Nevertheless
the principle has some application in the field of real property in a situation
such as that pertaining in the "TRNC" where it can be said that
the interests of the community required, if not necessitated, some form
of regularisation. In my view it is open to the Court to have regard to
this principle in the context of the dispute as to whether there is a continuing
situation without endorsing or recognising the legitimacy of the totality
of the property rearrangements effected by the "TRNC"in 1985.
Bearing in mind the de facto nature of the expropriation of the applicant's
property up to 1985 as well as the relevant provisions of the 1985 Constitution
affecting that property, I am unable to share the Court's opinion that
the applicant's complaint concerns a continuing situation. Since the Court's
jurisdiction only concerns matters occurring subsequent to 22 January 1990,
the Government's objection ratione temporis must be considered to be well-founded.
1. In its decision on the preliminary objections in the present case
the Court joined to the merits the objection ratione temporis. It was of
the opinion that the correct interpretation and application of the relevant
restrictions raised difficult legal and factual questions which were closely
connected to the merits of the case (paragraphs 103 and 104 of the judgment
of 23 March 1995).
It follows that the Court had first to examine the applicant's allegations
of a continuing violation of her property rights subsequent to 22 January
1990. That examination entailed an assessment as to whether the applicant
could still be regarded as the legal owner of the land, which in turn depended
upon a prior clarification of the manner in which the loss of her ownership
occurred - or did not occur - before that date. In particular, did it occur
by way of an instantaneous act, and if so, by which act, or did she lose
her property as a result of a longer process, ending in an irreversible
expropriation, possibly by virtue of Article 159 of the "TRNC"
Constitution of 7 May 1985?
2. I was unable to subscribe to the finding of the majority of my colleagues
that Mrs Loizidou cannot be deemed to have lost title to her property,
and that she must therefore still be regarded as the legal owner of the
land. On the other hand, after considering facts advanced by the applicant
and by the respondent Government, and those found by the Court, I also
remained unconvinced of the opposite view, namely, that she in fact lost
title to her property. Consequently, and in doubt, I was unable to dismiss
the preliminary objection ratione temporis.
3. For similar reasons I also remained in doubt as to whether the denial
of access to the applicant's property resulted in her loss of control,
amounting to a breach of Article 1 of Protocol No. 1, which occurred due
to the interference with the peaceful enjoyment of her possessions. Consequently
I also dissented on the issue of the imputability of the interference to
Turkey, and on whether there has been a violation of Article 1 of Protocol
No. 1 (points 2 and 3 of this judgment's operative provisions).
4. In the present case an interesting interplay took place between casting
a vote on the preliminary objection, and then on the merits. It is worth
mentioning it as an obiter dictum to my opinion.
In the memorials and at the hearing we were witness to the exchanges
about the "proper" calculation of the votes of the members of
the Commission at the admissibility and at the final stage. It appeared
as obvious that an individual member of the Commission may indeed opt for
any one of the following three choices: (a) to hold that there was no breach
of the Convention because of the prior acceptance of the validity of the
preliminary objection without going into the merits; (b) to hold that there
was no breach after firstly accepting the preliminary objection, and then
going into the merits, or (c) to hold that there was a breach after firstly
accepting the preliminary objection, and then going into the merits.
In retrospect, the majority of 8 members of the Commission, who voted
for "non-violation" of Article 1 of Protocol 1 was re-interpreted
as being composed of 3 members who found no violation after going into
the merits, and 5 members who voted for non-admissibility of the case,
and have either (a) not expressed a valid opinion on the issue of violation
at the merits stage (the Cyprus Government position), or (b) have expressed
a valid opinion on this (this seems to be President Trechsel's view, although
not stated in exactly such terms).
All in all, two kinds of principled reasoning about the issue seem possible
at first sight:
(a) The two votes, at the admissibility/preliminary objections stage
and at the merits stage, are independent of each other. The decision about
the jurisdiction appears autonomous from a procedural point of view. But
it may not be autonomous in relation to the merits considering the facts,
the law, or the philosophical views of a judge. For example, a judge may
adhere to the doctrine of judicial restraint, and therefore vote conservatively
in favour of the preliminary objection, while the merits of the case may
on the other side be of quite another concern for him or for her.
Moreover, the "Scandinavian doctrine" of minority respect
for majority decision in the follow-up cases, as applied to the present
issue would recommend that a judge who was overruled on the preliminary
objection, should recognise its authority immediately. Because he feels,
or actually is bound by the decision on Court's jurisdiction, he should
go into the merits all the way - by expressing views and by casting his
(b) The second kind of reasoning would advocate interdependence of the
two votes, at the preliminary objections and at the merits stage. If the
judge took the view that a preliminary objection is well-founded, he has
to vote for non-violation, given that in his view the Court is not competent
to deal with the issue and should therefore never decide on the merits.
If the dissenting judge's view would prevail, the Court would not be seized,
the applicant's claim would not be considered on its merits, and the violation
would consequently not be found.
The present case departs from the two options discussed in the sense
that the decision on the preliminary objection ratione temporis depended
upon a prior examination of certain aspects of the merits. Therefore, the
choice between the two options is not exhaustive of all possibilities.
As for myself, I came to the conclusion that the merits of the case fall
outside the jurisdiction of the Court ratione temporis only after a preliminary
examination of those facts found by the Court which related to the issue
of the title and control of the property.
My subsequent dissent from the second and the third points of the operative
provisions of the judgement was effected cumulatively by the reasoning
under (b) above, by my preliminary and partial understanding of the merits
of the case, and by some further considerations which I set out below.
5. The alleged original ("instantaneous") breach is in my
view veiled in the factual and legal uncertainties of events which occurred
as long ago as 1974 and even before. It also seems beyond this Court's
abilities and competence to assess with the required certainty whether
Turkey's interference was (in)consistent with international agreements,
and whether or not it was (in)consistent with general principles of international
I am indebted to my colleague Judge Wildhaber for having reminded me
also of the following ideas: The United Nations and other international
policies of non-recognition of "TRNC" are valid on an inter-state
level. As a result, the "TRNC" Government cannot create legislation
or bring about changes with legal effect in international law. However,
it would be going too far to say that no purportedly legal acts of the
"TRNC" administration are valid. For example, a marriage conducted
by a "TRNC" official, and registered in the "TRNC",
would have legal effect outside that "jurisdiction". Similarly,
a transfer of property between private individuals in northern Cyprus,
registered by an official of the "TRNC", would have legal effect
elsewhere in the world.
Similar situations have occurred in other countries in the past. For
example, in the settlement between Czechoslovakia and Germany following
the Second World War, it was decided that the Munich Agreement was null
and void, but that land transactions between private individuals were valid.
Furthermore, the events in northern Cyprus in 1974 would not be sufficient
on their own to establish that Mrs Loizidou had lost her property. For
example, if the prior status quo had been re-established in 1975 or 1976,
she would not have lost her property. But the prior status quo has not
yet been restored. 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 transfer of ownership was effected.
The Court's earlier case-law has always dealt in this respect with concrete
situations. For example, in the Papamichalopoulos and Others v. Greece
judgment (of 24 June 1993) the case concerned a refusal by the authorities
to execute a national court decision. That is not the case here, where
the ownership of Mrs Loizidou was allegedly altered by the events of 1974,
or even as a result of the follow-up "process of the 'taking of the
I must therefore suppose that after a certain time events in the "TRNC"
may have led to a transfer of ownership - in which case there is no violation
continuing to the present day: the relevant acts in northern Cyprus were
possibly completed by the time of the Turkish declaration recognising this
Court's jurisdiction.
The doctrine of "continuing violation" implies a beginning,
i.e., a critical event constituting the original breach, and its continuation.
In the case of Titina Loizidou the Court in my view failed to ascertain
both ingredients to this concept in an unequivocal manner. This line of
reasoning thus led me, inter alia to the conclusion that the objection
ratione temporis applies.
6. Moreover, the factual situation established in 1974 persisted ever
since and it is still uncertain which side in the conflict, or even more
likely, what kind of negotiated compromise solution will become "ultimately
successful". While it is true that simple longevity of control must
not be equated with "ultimate success", it is also far from established
whether the "TRNC" de facto Government will survive or not, and
if it will, in what form - as a federal or confederal unit, an independent
state, or in some other form. In any case, the validity of its acts concerning
the applicant must be considered to depend upon its ultimate success. The
final outcome of the conflict - in the form of a post facto international
or bilateral settlement - will have to resolve in one way or another the
issue of recognition of the acts of the "TRNC" from the commencement
of its existence, and/or of reversion to the original status prior to such
7. A national, and an international judge alike, before making a decision
to act in an activist or a restrained way, will as a rule examine whether
the case is focused in a monocentric way and ripe for decision, and whether
it is not overly moot and political.
Given that efforts are under way to arrive at a peaceful settlement
of the Cyprus problem within UN, CE and other international bodies, a judgment
of the European Court may appear as prejudicial. The respective "political
nature" of the issue at hand does not refer, however, to the possible
political consequences of the final judgment; all judgments, domestic and
international, have at least some general social and political effects.
The "political nature" of the present case is in my view rather
related to the place of the courts in general, and of the Strasbourg mechanism
in particular, in the scheme of the division and separation of powers.
There, the courts have a different role to play, than, e.g., the legislative
and executive bodies. Courts are adjudicating in individual and in concrete
cases according to prescribed legal standards. They are ill-equipped to
deal with large scale and complex issues which as a rule call for normative
action and legal reform.
The same kinds of dilemmas face an international tribunal, which should,
in my view, proceed in a rather restrained, that is, conservative way in
matters which clearly transcend adjudication of an individual case, especially
when they are part and parcel of a given structure of inter-community relationships.
As to the present case, a "violation decision" on Article 1 of
Protocol 1 might invite another one hundred thousand or so similar cases
in which applications could be filed with legitimate expectations that
Commission's reports or the Court's judgments will follow the present precedent.
In that case, the Court has in fact taken a broad decision about a large
scale issue in the realm of public international law.
8. This case may furthermore affect the role of the Court in another
perspective, on which I also had the privilege to exchange and share ideas
with my colleague Judge Wildhaber. It may affect the way in which the Court
might handle future cases involving new member States such as Croatia,
Bosnia and Hercegovina or Russia. The Court might have to look at what
happened in the Croat region of Krajina, in the Republika Srpska, in other
parts of Bosnia and Hercegovina, or in Chechnya. There, alleged violations
of Convention-protected human rights and fundamental freedoms would be
counted in millions, not "only" in hundreds and thousands of
possible cases.
I have great respect for the principled view that the Court's only task
is to see to it that fundamental rights of individuals are respected, irrespective
of their numbers. On the other hand, I see much reason to consider seriously
an equally legitimate issue of this Court's effectiveness in resolving
human rights problems. This problem is even more difficult in respect of
individual cases, such as the present one, which are inextricably linked
to, and also depend upon the solution of a large scale inter-communal ethnic
and/or political conflict.
9. In the final analysis the totality of the above considerations led
me to take a restrained judicial approach in the present case, and to accept
validity of the exceptio ratione temporis.
(provisional translation)
I voted with the minority against finding a violation of Article 1 of
Protocol No. 1 for a number of reasons. In the judgment on the preliminary
objections I had already expressed my views as follows:
"At the examination of preliminary objections stage, after the
discussion at the public hearing, which was limited to analysis of these
objections by the Parties, the European Court was not able to take cognisance
of all the problems, and this circumstance militated even more forcefully
in favour of joining all these objections to the merits. To date legal
writers have not considered analysis of the Turkish declaration a simple
matter (see Claudio Zanghi, Christian Tomuschat, Walter Kalin, Pierre-Henri
Imbert, Christopher Lush, etc.).
An overall assessment of the situation, beginning with the concepts
of sovereignty and jurisdiction, would make it possible to review the criteria
("occupation", "annexation", territorial application
of the Geneva Conventions in northern Cyprus, "conduct of international
relations") on the basis of which the UN has analysed both the problem
whether or not to recognise northern Cyprus as a State and the problem
of the application of the UN Charter (see Security Council Resolution 930).
The responsibilities of the European Convention institutions, when faced
with such difficulties, reflect the mutual commitment of the member States
to ensuring the best and widest protection of individuals and fundamental
rights in the countries concerned by applying the Convention provisions
in a manner consistent with their object and purpose" (individual
dissenting opinion, Series A no. 310, pp. 43-44).
"Admittedly the concept of jurisdiction is not restricted to the
territory of the High Contracting Parties, but it is still necessary to
explain exactly why jurisdiction should be ascribed to a Contracting Party
and in what form and manner it is exercised. We note that in the Drozd
and Janousek v. France and Spain judgment cited in paragraph 62 the Court
eventually found that there had been no violation.
While the responsibility of a Contracting Party may be engaged as a
consequence of military action outside its territory, this does not imply
exercise of its jurisdiction. The finding in paragraph 64 does not refer
to any criterion for deciding the question of jurisdiction. In our opinion,
therefore, there is a contradiction between what the Court says in paragraph
62 and its conclusion in paragraph 64, and this contradiction reappears
in the vote on point 2 of the operative provisions. The Court should have
looked into the merits of the question who did or did not have jurisdiction
before ruling on the objection" (joint dissenting opinion of Judge
Golcuklu and myself, loc. cit., p. 35).
That is why I was in favour of upholding the objection ratione temporis
and of distinguishing between ratione loci and ratione personae.
Neither the second deliberations nor the memorials produced supplied
the detailed information needed for a thorough assessment of the facts.
Nor did the parties' arguments concerning Protocol No. 1 shed any light
on the problem of attributing responsibility for any interference with
the use of property there may have been, although free access to the property
depended on liberty of movement from one zone to the other.
The majority held that there had been a violation of Article 1 of Protocol
No. 1 mainly because of the refusal of access since 1974, which led to
the complete loss of control over the property, a matter covered by the
first sentence of that provision. They considered that the interference
was not justified and criticised the Turkish Government for not explaining
how the need to rehouse the Turkish Cypriot refugees displaced after 1974
could justify the measure taken against Mrs Loizidou. Indeed, the Court
went on to say that it could not accept such a justification. In any case,
I consider that consideration to be of secondary importance.
The need concerned seems obvious, and if events had made the rehousing
operation inevitable, that could justify the interference. The facts of
the matter had to be looked into. The Loizidou case as a whole could not
be analysed as if it concerned a de facto expropriation under ordinary
law, without compensation. The movement of displaced persons from one zone
to another, an exodus which affected both communities, was the consequence
of international events for which responsibility cannot be ascribed on
the basis of the facts of the Loizidou case but has to be sought in the
sphere of international relations.
Since 1974, the United Nations not having designated the intervention
of Turkish forces in northern Cyprus as aggression in the international
law sense, various negotiations have been conducted with a view to mediation
by the United Nations, the Council of Europe and the European Union. Moreover,
the Court did not examine the question whether that intervention was lawful
(see paragraph 50 of the judgment). The decision to station international
forces on the line separating the two communities made the free movement
of persons between the two zones impossible, and responsibility for that
does not lie with the Turkish Government alone.
The Court's reference to the international community's views about the
Republic of Cyprus and the TRNC (see paragraph 56 of the judgment) is not
explained. But is it possible in 1996 to represent the views of this "international
community" on the question as uncontested, given that the most recent
resolutions of the United Nations General Assembly and Security Council
go back several years and the Court had no knowledge of the missions of
the international mediators? For the Court it would appear that only Turkey
is "accountable" for the consequences of the 1974 conflict! In
my opinion, a diplomatic situation of such complexity required a lengthy
and thorough investigation on the spot, conducted by a delegation of the
Commission, of the role of the international forces and the administration
of justice, before the Court determined how responsibility, in the form
of the jurisdiction referred to in Article 1 of the Convention, should
be attributed.
The problem of the status and responsibilities of the TRNC should have
been examined more fully. It is true that the United Nations General Assembly
has not admitted the TRNC as a member, but the lack of such recognition
is no obstacle to the attribution of national and international powers
(see paragraph 51 of the judgment). The case of Taiwan is comparable.
Moreover, the Court accepted the validity of measures adopted by the
TRNC authorities in the fields of civil law, private law and the registration
of births, deaths and marriages, without specifying what reasons for distinguishing
between these branches of law and the law governing the use of property
justified its decision. On the merits of Mrs Loizidou's claim, there are
a number of uncertainties which have not been elucidated by the files.
Since 1974 she does not seem to have taken any steps to give tangible expression
to her intention of going to live in northern Cyprus or brought proceedings
to preserve her title between 1974 and 1985 at least in the courts of the
Republic of Cyprus, although she maintained that the latter had sole legitimate
jurisdiction and sovereignty over the whole island. She did not apply to
the Commission until 1989 and she has not produced any evidence that she
applied to the UN forces for authorisation to cross the line and travel
in the area beyond the border zone. The very basis of her civil action
remains to be specified, her application being mainly concerned with access
to her property. Loss of the use of the property is essentially due to
the creation of the border, not to any one act on the part of a local authority.
The Court takes the view that it acquired jurisdiction on 22 January
1990 (see paragraph 32 of the judgment). Quite apart from the problem of
admissibility raised by the wording of Turkey's declaration under Article
46 of the Convention, it is not obvious that there was a continuing violation
of Mrs Loizidou's property rights. On the contrary, it could be considered
that there was an instantaneous violation in 1974, at the time of the coup
d'etat, even before a de facto expropriation in 1985 by the local authorities
and during a period of disorder on which the Commission has not been able
to throw any light, making it impossible to dissociate Mrs Loizidou's personal
situation from the historical situation which also affected the Turkish
Cypriot community. The term "continuing violation" is not appropriate,
as the Commission observed in paragraphs 97 and 98 of its report.
It should also be noted that the Commission limited its finding on the
question whether Turkey exercised jurisdiction to the border zone, not
the whole of northern Cyprus (see applications nos. 6780/74, 6950/75 and
8077/77) and that it concluded that the applicants' arrest, detention and
trial in the above-mentioned cases were not acts imputable to Turkey (see
paragraph 51 of the judgment and paragraph 114 of the Turkish Government's
memorial). In its report of 8 September 1993 the Commission refrained from
ruling on the status of the TRNC.
That takes us a long way from the type of situation which the Court
termed a continuing violation in cases such as the Holy Monasteries case.
The scope and limits of the concept of a continuing violation should have
been defined.
Whatever the responsibilities assumed in 1974 at the time of the coup
d'etat, or those which arose with the arrival of the Turkish troops in
the same year, however hesitant the international community has been in
attempting to solve the international problems over Cyprus since 1974,
at the time when the TRNC was set up or at the time of Turkey's declaration
to the Council of Europe, those responsibilities being of various origins
and types, the whole problem of the two communities (which are not national
minorities as that term is understood in international law) has more to
do with politics and diplomacy than with European judicial scrutiny based
on the isolated case of Mrs Loizidou and her rights under Protocol No.
1. It is noteworthy that since 1990 there has been no multiple interstate
application bringing the whole situation in Cyprus before the Court. That
is eloquent evidence that the member States of the Council of Europe have
sought to exercise diplomatic caution in the face of chaotic historical
events which the wisdom of nations may steer in a positive direction.
I disagree with the majority on all points and in the first place on
rejection of the Turkish Government's preliminary objection concerning
the Court's jurisdiction ratione temporis. The present dissenting opinion
is prompted mainly by the fact that this case raises legal and political
difficulties which go well beyond the conceptual framework established
by the Convention and the whole of the Court's case-law hitherto.
1. Firstly, the present judgment contains serious methodological flaws.
As I pointed out in my dissenting opinion on the preliminary objections
in the same case (judgment of 23 March 1995), the central legal problem
in the case of Loizidou v. Turkey is the question of jurisdiction and responsibility
for the purposes of the Convention. Not only does the judgment not resolve
this problem, it boldly ventures into a highly political area, namely the
Court's definition of the capacity in which Turkey is present in northern
Cyprus and its "assessment" of the legal existence of the Turkish
Republic of Northern Cyprus, both of which are matters that lie entirely
outside its jurisdiction and are dealt with differently by other bodies.
In other words, the Court has built its own data base in order to be able
to "rule" on a case that is likely to become the prototype for
a whole series of similar cases which will in all probability be resolved
by political bodies. Hitherto, each time the Strasbourg supervision institutions
had to deal with a case involving application of other international treaties
or agreements, they proceeded with great caution, and such applications
never got past the admissibility stage. It is interesting, for example,
that even in the present case the Commission, in its report of 8 July 1993,
prudently stated with regard to the applicant's allegation that she had
been unlawfully deprived of her possessions: "The Commission finds
that it is not in this connection required to examine the status of the
'Turkish Republic of Northern Cyprus'. It notes that the demonstration
on 19 March 1989, in the course of which the applicant was arrested in
northern Cyprus, constituted a violation of the arrangements concerning
the respect of the buffer-zone in Cyprus... The provisions under which
the applicant was arrested and detained ... served to protect this very
area. This cannot be considered as arbitrary" (see paragraph 82 of
the report). Likewise, in its report on the case of Chrysostomos and Papachrysostomou
v. Turkey, the Commission stated: "... the Commission does not feel
called upon to resolve the dispute between the parties as to the status
of the area in which the applicants' arrest took place. It refers in this
respect to para. 11 sub-para. (b) of the report of the Secretary-General
of the United Nations ... and to para. 6 of the Unmanning Agreement of
1989 ..." (see paragraph 153 of the report).
2. As regards jurisdiction too, the Court's present judgment goes beyond
the limits of its previous case-law on the question.
Wherever jurisdiction is not derived from the territorial ambit of a
Contracting State's legal system, the fact of its existence must be expressly
established, since in such cases it is not legally correct to speak of
application of the Convention ratione loci. On that point I refer to my
dissenting opinion in the above-mentioned Loizidou v. Turkey judgment and
the Commission's decision of 12 March 1990 on the admissibility of application
no. 16137/90, which concerned application of the Convention to Hong Kong
(DR 65, p. 334 et seq.).
In its decision of 26 May 1975 concerning the case of Cyprus v. Turkey
(6780/74 and 6950/75, DR 2, p. 136) the Commission had already taken the
same view. That decision clearly shows that it is not a question of the
Convention's application ratione loci, but of its application ratione personae.
That approach is clarified still further in other decisions in which
the Commission has expressed the opinion that the acts of a State's officials,
including diplomatic or consular agents, "bring other persons or property
within the jurisdiction of that State to the extent that they exercise
authority over such persons or property" (application no. 17392/90,
DR 73, p. 193, and application no. 7547/76, DR 12, p. 73).
In its Drozd and Janousek judgment the Court too, after noting that
the Principality of Andorra was not "an area ... common to the French
Republic and the Kingdom of Spain, nor ... a Franco-Spanish condominium",
concluded that there was no jurisdiction ratione loci. It was only after
excluding that category of jurisdiction that the Court turned to the question
whether there was jurisdiction ratione personae, and what is more on the
basis of the case-law cited above (judgment of 26 June 1992, § 91).
In its report on the cases of Chrysostomos and Papachrysostomou the
Commission observed: "The Commission, having regard to the developments
described above and finding no indication of direct involvement of Turkish
authorities in the applicants' detention, and the proceedings against them,
after their arrest on 19 July 1989, sees no basis under the Convention
for imputing these acts to Turkey" (see paragraph 170 of the report).
The present judgment breaks with the previous case-law since in dealing
with the question whether there was jurisdiction ratione personae it applies
the criteria for determining whether there was jurisdiction ratione loci,
although the conditions for doing so have not been met. Thus, for the first
time, the Court is passing judgment on an international law situation which
lies outside the ambit of the powers conferred on it under the Convention's
supervision machinery. In this judgment the Court projects Turkey's legal
system onto northern Cyprus without concerning itself with the political
and legal consequences of such an approach.
3. I would also emphasise that not only does northern Cyprus not come
under Turkey's jurisdiction, but there is a (politically and socially)
sovereign authority there which is independent and democratic. It is of
little consequence whether that authority is legally recognised by the
international community. When applying the Convention the actual factual
circumstances are the decisive element. The Commission and the Court have
stated more than once that the concept of "jurisdiction" within
the meaning of Article 1 of the Convention covers both de facto and de
jure jurisdiction. In northern Cyprus there is no "vacuum", whether
de jure or de facto, but a politically organised society, whatever name
and classification one chooses to give it, with its own legal system and
its own State authority. Who today would deny the existence of Taiwan?
That is why the Commission in its report on the Chrysostomos and Papachrysostomou
cases examined the law in force in northern Cyprus as such, and not Turkish
law in order to determine whether the applicants' detention had been lawful
(see paragraphs 148, 149 and 174 of the report).
4. I now come to the heart of the problem. I voted in favour of upholding
the Turkish Government's preliminary objection ratione temporis and against
finding a violation of Article 1 of Protocol No. 1. As Judge Bernhardt,
the Vice-President of the Court, rightly pointed out in his dissenting
opinion, some general remarks are indispensable before any discussion of
the two main aspects of the case can begin.
I agree entirely with that part of Judge Bernhardt's opinion where he
states: "A unique feature of the present case is that it is impossible
to separate the situation of the individual victim from a complex historical
development and a no less complex current situation. The Court's judgment
concerns in reality not only Mrs. Loizidou, but thousands or hundreds of
thousands of Greek Cypriots who have (or had) property in northern Cyprus.
It might also affect Turkish Cypriots who are prevented from visiting and
occupying their property in southern Cyprus. It might even concern citizens
of third countries who are prevented from travelling to places where they
have property and houses. "The factual borderline between the two
parts of Cyprus has the ... consequence that a great number of individuals
are separated from their property and their former homes".
The Cypriot conflict between the Turkish and Greek communities is mainly
attributable to the 1974 coup d'etat, carried out by Greek Cypriots with
the manifest intention of achieving union with Greece (enosis), which the
Cypriot head of state at the time vigorously criticised before the international
bodies. After this coup d'etat Turkey intervened to ensure the protection
of the Republic of Cyprus under the terms of a Treaty of Guarantee previously
concluded between three interested States (Turkey, the United Kingdom and
Greece) which gave these States the right to intervene separately or jointly
when the situation so required, and the situation did so require ultimately
in July 1974, on account of the coup d'etat. In all of the above, incidentally,
I make no mention of the bloody events and incidents which had been going
on continually since 1963.
This implementation of a clause in the Treaty of Guarantee changed the
previously existing political situation and durably established the separation
of the two communities which had been in evidence as early as 1963.
I fully agree with Judge Bernhardt that after the 1974 coup d'etat there
were a number of actors and factors involved in the Cypriot "drama",
including "the population transfer from north to south and south to
north". He continued: "The result of the different influences
and events is the 'iron wall' which has existed now for more than two decades
and which is supervised by United Nations forces. All negotiations or proposals
for negotiations aimed at the unification of Cyprus have failed up to now.
Who is responsible for this failure? Only one side? Is it possible to give
a clear answer to this and several other questions and to draw a clear
legal conclusion? The case of Mrs. Loizidou is not the consequence of an
individual act of Turkish troops directed against her property or her freedom
of movement, but of the establishment of the borderline in 1974 and its
closure up to the present day."
After the establishment of the buffer zone under the control of United
Nations forces, movement from north to south and vice versa was prohibited
and there was a population exchange with the common consent of the Turkish
and Cypriot authorities under which eighty thousand Turkish Cypriots moved
from southern to northern Cyprus.
I must emphasise once again that, as already mentioned at the very beginning
of this dissenting opinion, in the present case we are dealing with a political
situation and it is impossible to separate the political aspects of the
case from the legal aspects.
The case has another political dimension for our Court. Its judgment
will certainly have consequences for future cases - whose origins go back
to the Second World War - against new members of the Council of Europe,
such as the countries in Central or Eastern Europe previously governed
by communist regimes.
Turkey has recognised the Court's jurisdiction only in respect of events
subsequent to 22 January 1990. That restriction excludes all judicial consideration
of events prior to that date, even if they were incompatible with the respondent
State's obligations under the Convention.
The Convention institutions have accepted the notion of "continuing
violations", that is violations which began before the critical date
and continued afterwards. However, where this concept is invoked it is
vital to define its scope and its limits. In the case of imprisonment or
the illegal occupation of land before and after the date concerned there
is no doubt that a continuing violation exists and that the period subsequent
to the critical date falls within the Court's jurisdiction. Like Judge
Bernhardt, however, I consider that the position is different in the present
case, where a certain historical event has led to "a situation such
as the closing of a borderline with automatic consequences for a great
number of cases". If it were otherwise, the Strasbourg institutions
could be confronted with the difficult task of reconsidering historical
events many years after their occurrence and applying Convention standards
In the Loizidou v. Turkey case it is the existence of a buffer zone,
a kind of border guarded by UN forces in collaboration with the security
forces of both communities, in accordance with the agreements they have
concluded, which is preventing the Greek Cypriots of southern Cyprus from
obtaining access to their properties in the north and from living there.
Its establishment, which took place before 1990, that is before Turkey
recognised the Court's jurisdiction, was an instantaneous act which froze
a de facto situation of a political nature. That being the case, we are
not confronted with a "continuing situation" as the majority
of the Court considered. In this case, therefore, there is no question
of a continuing violation nor of any infringement of the applicant's right
of property. That is also the view taken by the Commission, which noted:
"the applicant, who was arrested after having crossed the buffer-zone
in Cyprus in the course of a demonstration, claims the right freely to
move on the island of Cyprus, irrespective of the buffer-zone and its control,
and bases this claim on the statement that she owns property in the north
of Cyprus." The report continues: "The Commission acknowledges
that limitations of the freedom of movement - whether resulting from a
person's deprivation of liberty or from the status of a particular area
- may indirectly affect other matters, such as access to property. But
this does not mean that a deprivation of liberty, or restriction of access
to a certain area, interferes directly with the right protected by Article
1 of Protocol No. 1. In other words, the right to the peaceful enjoyment
of one's possessions does not include, as a corollary, the right to freedom
of movement." The Commission accordingly concluded that there had
been no violation of Article 1 of Protocol No. 1 to the Convention (see
the Commission's report on the application of Titina Loizidou v. Turkey,
paragraphs 97, 98 and 101).
[fn1] The case is numbered
40/1993/435/514. The first number is the case's position on the list of
cases referred to the Court in the relevant year (second number). The last
two numbers indicate the case's position on the list of cases referred
to the Court since its creation and on the list of the corresponding originating
applications to the Commission. (Back to FN1)
[fn2] Rules A apply to
all cases referred to the Court before the entry into force of Protocol
No. 9 (1 October 1994) and thereafter only to cases concerning States not
bound by that Protocol. They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently. (Back to FN2)
[fn3] Note by the Registrar.
For practical reasons this annex will appear only with the printed version
of the judgment (in Reports of Judgments and Decisions - 1996), but a copy
of the Commission's report is obtainable from the registry. (Back to FN3)