LOIZIDOU v.
TURKEY
EUROPEAN COURT OF HUMAN RIGHTS
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PRESS RELEASE (18.12.95) LOIZIDOU v. TURKEY EUROPEAN COURT OF HUMAN RIGHTS HUMAN
RIGHTS NEWS 725 18.12.1996 Press release issued by the Registrar of
the European Court of Human Rights 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 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" Article 8 "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." Article 50 "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." |