Turkey - preliminary objections in case concerning
access to property in northern Cyprus, referred to Court by the Government of Cyprus -
I. Standing of the applicant Government
The applicant Government have been recognised by the
international community as the Government of the Republic of Cyprus.
Conclusion: its locus standi as the
Government of a High Contracting Party not in doubt.
II. Abuse of process
Since objection not raised before the Commission the
Turkish Government is estopped from raising it before the Court in so far as it applies to
In so far as objection is directed to the applicant
Government, the Court notes that this Government have referred the case to the Court inter
alia because of concern for the rights of the applicant and other citizens in the same
situation. Such motivation not an abuse of Court' s procedures.
Conclusion: objection rejected (unanimously).
III. The Turkish
Government' s role in the proceedings
Not within the discretion of a Contracting
Party to characterise its standing in the proceedings before the Court in the manner it
sees fit. Case originates in a petition made under Article 25 against Turkey in her
capacity as a High Contracting Party and has been referred to the Court under Article 48
(b) by another High Contracting Party.
Conclusion: Turkey is the respondent party in this
IV. Scope of the case
The applicant Government have confined themselves to
seeking a ruling on the complaints under Article 1 of Protocol No. 1 and Article 8, in so
far as they have been declared admissible by the Commission, concerning access to the
Not necessary to give a general ruling on the question
whether it is permissible to limit a referral to the Court to some of the issues on which
the Commission has stated its opinion.
Conclusion: only the above complaints are before
A. Whether the facts alleged by the
applicant are capable of falling within the jurisdiction of Turkey under Article 1
of the Convention
Court is not called upon at the preliminary objections
stage to examine whether Turkey is actually responsible. This falls to be determined at
the merits phase. Its enquiry is limited to determining whether the matters complained of
are capable of falling within the "jurisdiction" of Turkey even though they
occur outside her national territory.
The concept of "jurisdiction" under Article 1 is
not restricted to the national territory of the High Contracting Parties. Responsibility
may also arise when as a consequence of military action, whether lawful or unlawful, a
Contracting Party exercises effective control of an area outside its national territory.
Not disputed that the applicant was prevented by Turkish
troops by gaining access to her property.
Conclusion: facts alleged by the applicant are
capable of falling within Turkish "jurisdiction" within the meaning of Article 1
(sixteen votes to two).
The validity of the territorial restrictions attached to Turkey's Article 25 and 46
Court has regard to the special character of the
Convention as a treaty for the collective enforcement of human rights; the fact that it is
a living instrument to be interpreted in the light of present-day conditions. In addition,
its provisions are to be interpreted and applied so as to make its safeguards effective.
Court seeks to ascertain the ordinary meaning given to
Articles 25 and 46 in their context and in the light of their object and purpose. Regard
also had to subsequent practice in the application of the treaty.
If Articles 25 and 46 were to be interpreted as permitting
restrictions (other than of a temporal nature) States would be enabled to qualify their
consent under the optional clauses. This would severely weaken the role of the Commission
and Court and diminish the effectiveness of the Convention as a constitutional instrument
of European public order. The consequences for the enforcement of the Convention would be
so far-reaching that a power should have been expressly provided for. No such provision in
either Article 25 or 46.
The subsequent practice of Contracting Parties of not
attaching restrictions ratione loci or ratione materiae confirms the view
that these are not permitted.
Not contested that Article 46 of the Convention was
modelled on Article 36 of the Statute of the International Court of Justice. However, the
fundamental difference in the role and purpose of the respective tribunals, coupled with
the existence of a practice of unconditional acceptance, provides a compelling basis for
distinguishing Convention practice from that of the International Court.
Finally, the application of Article 63 S 4, by analogy,
does not provide support
for the claim that a territorial restriction is
Validity of the Turkish declarations under Articles 25 and 46
Court does not consider that the issue of the severability
of the invalid parts of Turkey's declarations can be decided by reference to the
statements of her representatives expressed subsequent to the filing of the declarations.
Turkey must have been aware, in view of the consistent practice of Contracting Parties,
that the impugned clause were of questionable validity.
Court finds that the impugned restrictions can be
separated from the remainder of the text, leaving intact the acceptance of the optional
Conclusion: the territorial restrictions are
invalid but the declarations under Articles 25 and 46 contain valid acceptances of the
competence of the Commission and Court (sixteen votes to two).
Objection ratione temporis
The correct interpretation and application of the
restrictions ratione temporis in the Turkish declarations under Articles 25 and 46,
and the notion of continuing violations of the Convention, raise difficult legal and
factual questions. On the present state of the file, Court does not have sufficient
elements enabling it to decide these questions.
Conclusion: objection joined to the merits of the
Court's case-law referred to
9.2.1967, Belgium Linguistics case; 7.12.1976, Kjeldsen,
Busk Madsen and Pedersen v. Denmark; 15.1.1978, Ireland v. the United Kingdom; 25.4.1978,
Tyrer v. the United Kingdom; 13.5.1980, Artico v. Italy; 18.12.1986, Johnston and Others
v. Ireland; 29.4.1988, Belilos v. Switzerland; 7.7.1989, Soering v. the United Kingdom;
20.3.1991, Cruz Varas and Others v. Sweden; 30.10.1991, Vilvarajah and Others v. the
United Kingdom; 26.6.1992, Drozd and Janousek v. France and Spain; 24.6.1993,
Papamichalopoulos and Others v. Greece; 26.10.1993, Stamoulakatos v. Greece.
In the case of Loizidou v. Turkey 1 ,
The European Court of Human Rights sitting, in accordance
with Article 43 of the Convention for the Protection of Human Rights and Fundmental
Freedoms ("the Convention") and the relevant provisions of the Rules of Court A2
, as a Grand Chamber composed of the following judges: