Decision On Preliminary Objection
Home Up Decision On Article 50 Decision On Merits Decision On Preliminary Objection

 

SUMMARY(1) JUDGEMENT DELIVERED BY A CHAMBER (23.3.95) (1) This summary by the Registry does not bind the Court  

SUMMARY 
I. Standing of the applicant Government  
II. Abuse of process 
III. The Turkish Government' s role in the proceedings 
IV. Scope of the case 
V. Objections ratione loci 

A. Whether the facts alleged by the applicant are capable of falling within the jurisdiction of Turkey under Article 1 of the Convention 
B. The validity of the territorial restrictions attached to Turkey's Article 25 and 46 declarations 
C. Validity of the Turkish declarations under Articles 25 and 46

VI. Objection ratione temporis 

PROCEDURE 

AS TO THE FACTS 
I. The particular circumstances of the case 

A Turkey's declaration of 28 January 1987 under Article 25 of the Convention  
B. Exchange of correspondence between the Secretary General of the Council of Europe and the Permanent Representative of Turkey 
C. Reactions of various Contracting Parties to Turkey's Article 25 declaration 
D. Turkey's subsequent Article 25 declarations 
E. Turkish declaration of 22 January 1990 under Article 46 of the Convention

II. Cypriot declaration under Article 25  
III. The declaration of the United Kingdom under Article 25 

PROCEEDINGS BEFORE THE COMMISSION 

FINAL SUBMISSIONS TO THE COURT 

AS TO THE LAW 
I. THE STANDING OF THE APPLICANT GOVERNMENT 
II. ALLEGED ABUSE OF PROCESS 
III. THE TURKISH GOVERNMENT'S ROLE IN THE PROCEEDINGS 
IV. SCOPE OF THE CASE 
V. OBJECTIONS RATIONE LOCI 

A. Whether the facts alleged by the applicant are capable of falling within the jurisdiction of Turkey under Article 1 of the Convention 

1. Submissions of those appearing before the Court 
2. The Court's examination of the issue

B. The validity of the territorial restrictions attached to Turkey's Article 25 and 46 declarations. 

C. Validity of the Turkish declarations under Articles 25 and 46

VI. OBJECTION RATIONE TEMPORIS 

JOINT DISSENTING OPINION OF MR GOLCUKLU AND MR PETTITI 
With regard to the validity of the Turkish Government's declaration

APPENDICES 
Declaration by France 
Declaration by the United Kingdom 
Declaration by the Netherlands 
Chart of signatures and ratifications of the Convention (at 31 December 1994)  
INDIVIDUAL DISSENTING OPINION OF MR GOLCUKLU  
INDIVIDUAL DISSENTING OPINION OF MR PETTITI  

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 Mrs Loizidou.  

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 case.  

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 applicant's property.  

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 the Court.  

V. Objections ratione loci

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).  

B. The validity of the territorial restrictions attached to Turkey's Article 25 and 46 declarations  

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 permissible.  

C. 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 clauses.  

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).  

VI. 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 case (unanimously). 

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:  

Mr R. Ryssdal, President
Mr R. Bernhardt,
Mr F. Golcuklu,
Mr L. E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
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. Lohmus,
and also Mr H. Petzold, Registrar.

NOTES BY THE REGISTRY 

(1) This 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 refrerred to the Court since its creation and on the list of the corresponding originating applications to the Commission 

(2) Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on January 1983, as amended several times subsequently.

 

For  information about the page and its content send e-mail to: human-rights@cyprus.com.cy

Page design and maintenance by Golden Media Company
Page last updated on 07/21/99