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
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 jurisdiction.
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).
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).
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).
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
Rule?51 of Rules of Court A, as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President, Mr R. Bernhardt, Mr F. Gslc?kl?,
Mr L.?E. 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,
Having deliberated in private on 24 October 1995, 24
January and 28?November 1996,
Delivers the following judgment on the merits, which was
adopted on the last?mentioned 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 s 1 and Article?47 of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the Convention"). It
originated in an application (no.?15318/89) against the Republic of Turkey ("the
Turkish Government") lodged with the European Commission of Human Rights ("the
Commission") under Article?25 on 22 July 1989 by a Cypriot national, Mrs Titina
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 s 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
s 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, Advisers;
(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,
Mr?Brownlie, 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
Rule?24?s 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 23?November 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.
AS TO THE
I. PARTICULAR CIRCUMSTANCES OF THE CASE
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.?4609,
4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus and
she alleges that prior to the Turkish occupation of northern Cyprus on 20 July 1974, work
had commenced on plot no.?5390 for the construction of flats, one of which was intended as
a home for her family. Her ownership of the properties is attested by certificates of
registration issued by the Cypriot Lands and Surveys Department at the moment of
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
Leading a group of fifty marchers she advanced up a hill
towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the
United Nations' guard post on the way. When they reached the churchyard they were
surrounded by Turkish soldiers and prevented from moving any further.
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
document?S/20663) on the United Nations Operation in Cyprus (for the period
1?December?1988 - 31 May 1989) the Secretary-General of the United Nations described the
demonstration of 19 March 1989 as follows (at paragraph 11): "In March 1989,
considerable tension occurred over the well-publicized plans of a Greek Cypriot women's
group to organize a large demonstration with the announced intention of crossing the
Turkish forces cease-fire line. In this connection it is relevant to recall that,
following violent demonstrations in the United Nations buffer-zone in November?1988, the
Government of Cyprus had given assurances that it would in future do whatever was
necessary to ensure respect for the buffer-zone ... Accordingly, UNFICYP asked the
Government to take effective action to prevent any demonstrators from entering the
buffer-zone, bearing in mind that such entry would lead to a situation that might be
difficult to control. The demonstration took place on 19?March 1989. An estimated
2,000?women crossed the buffer-zone at Lymbia and some managed to cross the Turkish
forces' line. A smaller group crossed that line at Akhna. At Lymbia, a large number of
Turkish Cypriot women arrived shortly after the Greek Cypriots and mounted a counter
demonstration, remaining however on their side of the line. Unarmed Turkish soldiers
opposed the demonstrators and, thanks largely to the manner in which they and the Turkish
Cypriot police dealt with the situation, the demonstration passed without serious
incident. Altogether, 54?demonstrators were arrested by Turkish Cypriot police in the two
locations; they were released to UNFICYP later the same day."
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 28th?Infantry 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 15,500?personnel, 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 (section?9) and Article 156
of the Constitution of the "TRNC".
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:
"The Security Council ...
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 withdrawal;
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
4. Calls upon all States to respect the sovereignty,
independence, territorial integrity, unity and non-alignment of the Republic of
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 statement:
"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
23. The Commonwealth Heads of Government, meeting in New
Delhi from 23-29 November 1983, issued a press communique stating, inter alia, as follows:
"[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 Article?46 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.
PROCEEDINGS BEFORE THE COMMISSION
26. Mrs Loizidou lodged her application (no. 15318/89) on
22?July?1989. She complained that her arrest and detention involved violations of Articles
3, 5 and 8 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 Articles?3, 5 and 8 in respect of her
arrest and detention and?Article 8 and Article 1 of Protocol No. 1 concerning continuing
violations of her right of access to property alleged to have occurred subsequent to
29?January 1987. Her complaint under the latter two provisions of a continuing violation
of her property rights before 29 January 1987 was declared inadmissible.
In its report of 8 July 1993 (Article 31), 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 s 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
FINAL SUBMISSIONS TO THE COURT
28. In her memorial, the applicant requested the Court to
decide and declare:
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 Article?46 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 Protocol?No. 1.
30. In their memorial, the Turkish Government made the
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 Article?1 of the
3. Turkey has not violated the rights of the applicant
under Article 8 of the Convention.
AS TO THE
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 Protocol?No.?1 as well as a
continuing violation of the right to respect for her home under Article?8 of the
The Turkish Government contested this allegation and
maintained primarily that the Court lacked jurisdiction ratione temporis to examine it.
THE GOVERNMENT'S PRELIMINARY OBJECTION
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, ss?102-105). 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 Article?46
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.?15299/89, 15300/89 and 15318/89
(joined), Chrysostomos, Papachrysostomou and Loizidou v. Turkey, 4 March 1991, Decisions
and Reports (DR) 68, ss 50-60, pp. 250-251).
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 Article?159(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, ss 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 24?June 1993, Series?A no.?260?B), 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 Article?14 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 Article?8 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
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 24?February 1995, Series A no. 307-B, p. 51, s 73 and the
Gustafsson v. Sweden judgment of 25 April 1996, Reports 1996?I, p. ..., s 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, s 46, and the Agrotexim
and Others v. Greece judgment of 24 October 1995, Series A no. 330, p. 22, s 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 regarded?? 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 paragraph?35 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 (see?paragraph?18 above).
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.?6780/74 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.?85, at p.?146).
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 s 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, s 29, the Johnston and Others v.
Ireland judgment of 18 December 1986, Series A no. 112, p.?24, s 51, and the
above-mentioned Loizidou (Preliminary Objections) judgment, p. 27, s 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 Article?49 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 Article?159
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
Resolution?276 (1970),  International Court of Justice Reports?16, p. 56, s?125).
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 fails.
II. ALLEGED VIOLATION
OF ARTICLE 1 OF PROTOCOL NO. 1
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 Article?1 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."
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, ss?57-58), 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.?6780/74, 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 paragraph?32).
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. Article?1 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 22?January 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.?23-24, s 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, s 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 paragraphs?12?13 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 s 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, s 74, the Klaas v. Germany judgment of
22?September 1993, Series A no. 269, p.?17, s?29, and the McCann and Others v. the United
Kingdom judgment of 27 September 1995, Series A no. 324, p. 50, s 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, ss 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 Article?1 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
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
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, s 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.
III. ALLEGED VIOLATION
OF ARTICLE 8 OF THE CONVENTION
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
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 of?the 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
Accordingly, there has been no interference with the
applicant's rights under Article 8.
APPLICATION OF ARTICLE 50 OF THE CONVENTION
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 party."
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 REASONS, THE COURT
1. Dismisses by eleven votes to six the preliminary
objection ratione temporis;
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
Article?8 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.