JUDGEMENT IN THE
CASE OF LOIZIDOU v. TURKEY
In a judgement delivered in Strasbourg on 18 December 1996
in the case of Loizidou v. Turkey (Merits), the European Court of Human Rights dismissed
the Government's preliminary objection ratione temporis that the Court could not examine
the complaint because it concerned matters which occurred prior to Turkey's acceptance of
its jurisdiction (11 votes to 6) and held that the denial to the applicant of access to
her property in the northern part of Cyprus and consequent loss of control thereof was
imputable to Turkey (11 votes to 6) and amounted to a violation of the applicant's
property rights under Article 1 of Protocol No. 1 to the European Convention of Human
Rights (11 votes to 6). It also held unanimously that there had been no interference with
the applicant's right to respect for her home under Article 8 of the Convention, and that
the question of just satisfaction under Article 50 was not yet ready for decision and
should be reserved.
The judgement was read out in open court by Mr. Rolv
Ryssdal, the President of the Court.
BACKGROUND TO THE
CASE
A. Principal Facts
The applicant, Mrs. Titina Loizidou, is a Cypriot citizen.
She grew up in Kyrenia in northern Cyprus, where she owned certain plots of land. In 1972
she married and moved with her husband to Nicosia. Since 1974, she had been prevented from
gaining access to the above-mentioned properties as a result of the presence of Turkish
forces in Cyprus.
On 19 March 1989 a Greek Cypriot women's group,
"Women Walk Home", organised a march with the announced intention of crossing
the Turkish forces' cease-fire line. From Nicosia the demonstrators drove to the village
of Lymbia, where a group managed to cross the buffer zone and the Turkish forces' line.
Some of the women, including Mrs. Loizidou, were arrested by Turkish Cypriot policemen.
Later the same day, they were released to United Nations officials (UNFICYP) in Nicosia
and taken over to the Greek Cypriot area.
B. Proceedings
before the European commission of Human Rights
The case originated in an application lodged with the
Commission on 22 July 1989.
Having failed to secure a friendly settlement, the
commission drew up a report on 8 July 1993 in which it expressed the opinion that there
had been no violation of article 3 of the Convention (unanimously); Article 5 1 of the
Convention (9 votes to 4); Article 8 of the Convention, as regards the applicant's private
life (11 votes to 2); Article 8 of the Convention, as regards the applicant's home (9
votes to 4); or of Article 1 of Protocol No. 1 to the Convention (8 votes to 5).
The case was referred to the Court by the government of
Cyprus in so far as it related to the alleged interference with the applicant's property
rights and her home (Article 1 of Protocol No. 1 and Article 8 of the Convention).
C.
The Court's first judgement in the case
The Turkish Government had submitted, by way of
preliminary objections, inter alia, that the case fell outside the Court's jurisdiction on
the grounds that it related to facts and events which occurred before 22 January 1990,
when Turkey declared that she accepted the compulsory jurisdiction of the Court (objection
ratione temporis) and that it did not concern matters arising within the territory covered
by this declaration (objection ratione loci).
In a separate judgement of 23 March 1995 the Court
rejected the latter objection but joined to the merits the first preliminary objection
(ratione temporis).
SUMMARY OF THE JUDDGEMENT (1)
(1) This summary by the registry does not bind
the Court
1. The Government's preliminary objection
The Turkish Government had claimed inter alia that the
applicant had irreversibly lost ownership of her property prior to Turkey's declaration of
22 January 1990 accepting the Court's jurisdiction under Article 46 of the Convention.
The Court observed that its case-law recognised the
concept of a continuing violation of the Convention. The present case would in principle
concern alleged violations of a continuing nature, but only if Mrs. Loizidou could still
be regarded as the legal owner of the land.
According to the Turkish Government, however, she had lost
ownership on 7 May 1985 as a result of the operation of Article 159 of the Constitution of
the "Turkish Republic of Northern Cyprus ("TRNC") which purported to
expropriate inter alia properties within the boundaries of the "TRNC" which were
considered abandoned after 13 February 1975.
In this context, the Court took 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". A position to
similar effect was taken by the European Community and the commonwealth Heads of
Government. Moreover, it was only the Cypriot Government which was recognised
internationally as the government of the Republic of Cyprus in the context of diplomatic
and treaty relations and the working of international organisations.
In the Court's view, the principles underlying the
Convention could not be interpreted and applied in a vacuum. Mindful of the Convention's
special character as a human rights treaty, it had also to take into account any relevant
rules of international law when deciding on disputes concerning its jurisdiction.
In this respect it was evident from International practice
and the various strongly worded resolutions referred to above that the international
community did not regard the "TRNC" as a State under international law and that
the Republic of Cyprus had remained the sole legitimate government of Cyprus. Against this
background, the Court could not attribute legal validity for purposes of the Convention to
such provisions as Article 159 of the "TRNC" Constitution, and Mrs. Loizidou
could not be deemed to have lost title to her property as a result of it.
-Since no other facts indicating that she had ceased to
own the land had been advanced by the Turkish Government or found by the Court, she had
still to be regarded as legal owner for the purposes of Article 1 of Protocol No. 1 and
Article 8 of ;the Convention. The objection ratione temporis therefore failed.
[paragraphs 32-47 of the judgement and point 1 of the
operative provisions]
2.
Article 1 of Protocol No. 1
A. Imputability issue
The Court observed that the concept of
"jurisdiction" under the Convention was not restricted to national territory. In
particular, the responsibility of a Contracting State could arise when it exercised
effective control in an area outside its national territory as a consequence of military
action.
In the present case, the court found it significant that
the Turkish Government had acknowledged at an earlier stage in the case that Mrs.
Loizidou's loss of control of her property stemmed from the occupation of the northern
part of Cyprus by Turkish troops and the establishment there of the "TRNC".
Moreover, it had not been disputed that on several occasions she had been prevented by
Turkish troops from gaining access to her property.
In the Court's view, it was obvious from the large number
of troops engaged in active duties in northern Cyprus that the Turkish army exercised
effective overall control there. In the circumstances of the case, this entailed Turkey's
responsibility for the policies and actions of the "TRNC". Thus the denial to
Mrs. Loizidou of access to her property in northern Cyprus fell within Turkey's
"jurisdiction" for the purposes of Article 1 of Convention and was imputable to
Turkey.
The Court did not find it necessary to determine whether
Turkey exercised detailed control over the policies and actions of the "TRNC"
authorities or to examine the lawfulness of Turkey's intervention in the island in 1974.
[paragraphs 49-57 of the judgement and point 2 of the
operative provisions]
B.
Interference with property rights
The Court observed that although Mrs. Loizidou had
remained the legal owner of the land, since 1974 she had effectively lost all control over
it and all possibility to use and enjoy it. The continuous denial of access amounted,
therefore, to an interference with her rights under Article 1 of Protocol No. 1.
The Turkish Government had not sought to justify this
interference and the Court did not find any reason that could justify the complete
negation of Mrs. Loizidou's property rights in the form of a total and continuous denial
of access and a purported expropriation without compensation.
There had therefore been a violation of Article 1 of
Protocol No. 1 to the Convention.
[paragraphs 58-64 of the judgement and point 3 of the
operative provisions]
C. Article
8 of the Convention
Mrs. Loizidou had grown up in Kyrenia. After her marriage
in 1972 she had moved to Nicosia and had made her home there ever since, although she had
planned to live in one of the flats she had been building in northern Cyprus in 1974.
The Court observed that it would strain the meaning of the
notion "home" in Article 8 to extend it to comprise property on which it was
planned to build a house for residential purposes. Nor could that term be interpreted to
cover an area where one had grown up and where the family had its roots but where one no
longer lived.
Accordingly, there had been no interference with Mrs.
Loizidou's Article 8 rights.
[paragraphs 65-66 of the judgement and point 4 of the
operative provisions]
D.
Article 50 of the Convention
Since the Turkish Government had not commented on Mrs.
Loizidou's claim for just satisfaction, the Court decided to reserve the question and to
invite the government and the applicant to submit written observations on the matter
within the following six months
[paragraphs 67-69 of the judgement and point 5 of the
operative provisions]
In accordance with the Convention, judgement was given by
a Grand Chamber composed of seventeen judges, namely Mr. R. Ryssdal (Norwegian),
President, Mr. R. Bernhardt (German), Mr. F. Golcuklu (Turkish), Mr. L.E. Pettiti
(French), Mr. B. Walsh (Irish), Mr. A. Spielmann (Luxemburger), Mr. S.K. Martens (Dutch),
Mrs. E. Palm (Swedish), Mr. R. Pekkanen (Finnish), Mr. A.N. Loizou (Cypriot), Mr. J.M.
Morenilla (Spanish), Mr. A.B. Baka (Hungarian), Mr. M.A. Lopes Rocha (Portuguese), Mr. L.
Wildhaber (Swiss), Mr. G. Mifsud Bonnici (Maltese), Mr. P. Jambrek (Slovenian), Mr. U.
Lohmus (Estonian), and also of Mr. H. Petzold, Registrar, and Mr. P.J. Mahoney, Deputy
Registrar.
Six separate opinions are annexed to the judgement.
The judgement will be published shortly in the Reports of
Judgements and Decisions for 1996 (available from Carl Heymanns Verlag KG, Luxemburger
Strabe 449, D-50939 Koln).
Subject to his duty of discretion, the Registrar is
responsible under the Rules of court for replying to requests for information concerning
the work of the Court, and in particular to enquiries from the press.
Registry of the European Court of Human Rights
F - 67075 Strasbourg Cedex
Contact: Mr. Roderick LIDDELL
Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91
A P P E N D I X
Convention Articles referred to in the release
Article 1 of Protocol No. 1 |
"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"
"1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
1.There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of
others."
"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,... the decision of the Court shall, if necessary, afford just satisfaction
to the injured party."
