Cases concerning an individual right may give rise to more general issues related to the application of human rights law, such as questions of jurisdiction or the applicability of a Convention ratione temporis or ratione personae. In this context, the Loizidou case in the case-law history of the European Court is not only significant because of the contentious issues it raised, but also because of the consequences of the interpretation of the concept of ‘jurisdiction’ under Article 1 of the Convention. According to the Court (para. 52) jurisdiction is not restricted to the national territory of the Contracting States. The responsibility of Contracting States can result from acts and/or omissions of their authorities that produce effects outside their own territory. The responsibility of a Contracting Party could also arise when as a consequence of military action - whether lawful or unlawful - it exercises effective control over an area outside its national territory. The relevance of this interpretation of the concept of jurisdiction may have a substantial impact on the role of states in areas, e.g., Iraq in 2004, where troops can be considered to have effective control.
The following case,Loizidou v. Turkey , was referred to the European Court by the Government of the Republic of Cyprus. The applicant owned certain plots of land and her family home in northern Cyprus. Since 1974, she has been prevented from gaining access to her properties as a result of the presence of Turkish forces in Cyprus who exercise an overall control in the relevant area. The Turkish Government claimed, inter alia, that the applicant’s property had been irreversibly expropriated by virtue of Article 159 of the ‘TRNC’ (‘Turkish Republic of Northern Cyprus’) Constitution of 7 May 1985, prior to the Turkish Declaration of 22 January 1990 accepting the European Court’s jurisdiction. There was therefore no jurisdiction of the European Court ratione temporis.The European Court held that it was evident from international practice and resolutions of various international bodies that the international community does not regard ‘TRNC’ as a state under international law and that the Republic of Cyprus remained the sole legitimate Government of Cyprus.
European Court of Human Rights
Application No. 15318/89
Judgment of 18 December 1996
Keywords: property - possessions – self-determination - ratione temporis - exhaustion of domestic remedies
AS TO THE LAW
C. The Court’s assessment
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, para. 73, and the Gustafsson v. Sweden judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 655, para. 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. 69-70, paras. 40 and 46, and the Agrotexim and Others v. Greece judgment of 24 October 1995, Series A no. 330-A, p. 22, para. 58). Accordingly, the present case concerns alleged violations of a continuing nature if the applicant, for purposes of Article 1 of Protocol No. 1 (P1-1) and Article 8 of the Convention (art. 8), can still be regarded - as remains to be examined by the Court - as the legal owner of the land.
42. The Court has had regard to the Turkish Government’s allegation 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 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). In November 1983 the Committee of Ministers of the Council of Europe 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, pp. 135-36; no. 8007/77, Cyprus v. Turkey, 10 July 1978, DR 13, 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 para. 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, para. 29, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 24, para. 51, and the above-mentioned Loizidou judgment (preliminary objections), p. 27, para. 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 (art. 49).
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, para. 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 (P1-1) and Article 8 of the Convention (art. 8), 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 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 are imputable to the Turkish Government and constitute a violation of Article 1 of Protocol No. 1 (P1-1).
A. The imputability issue
52. As regards the question of imputability, the Court recalls in the first place that in its above-mentioned Loizidou judgment (preliminary objections) (pp. 23-24, para. 62) it stressed that under its established case-law the concept of “jurisdiction” under Article 1 of the Convention (art. 1) 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 judgment (preliminary objections), 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, para. 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.
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, paras. 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 continuous 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 (art. 1). 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 (art. 1) and is thus imputable to Turkey.
B. Interference with property rights
60. The Court first observes from the Commission’s decision on admissibility that the applicant’s complaint under Article 1 of Protocol No. 1 (P1-1) 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 (P1-1)” (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 (P1-1) is thus applicable.
62. With respect to the question whether Article 1 (P1-1) is violated, the Court first recalls its finding that the applicant, for purposes of this Article (P1-1), must be regarded to have remained the legal owner of the land (see paragraphs 39-47 above).
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 over, 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 (P1-1). Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred (see paragraphs 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 (P1-1-1, P1-1-2). However, it clearly falls within the meaning of the first sentence of that provision (P1-1) 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, para. 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 (P1-1).
FOR THESE REASONS, THE COURT
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 (P1-1);
Some experts who oppose the inclusion of the right to property in the human rights catalogue because of its controversial nature maintain that property rights can be better protected on the basis of other human rights such as Article 6 (fair trial), Article 8 (protection of privacy) or the right to housing. The present case shows clearly how there existed no other redress than via Article P1-1. It has been argued, on the basis of actual case-law, that cases such as Loizidou clearly show the importance and justification for the right to property in a human rights catalogue such as the European Convention . In a decision on 28 July 1998, the European Court, taking a decision on the basis of Article 50, granted damages to Loizidou. Turkey finally fulfilled the requirements of that verdict in 2003. One may note the large political implications of the case, as the dissenting opinion of the Turkish Judge pointed out. Turkey flatly refused in the beginning to comply with the judgement. Political pressure over the years led in the end to compensation in 2003. The question of imputation has been raised in more recent cases which raise complex issues related to which state is responsible for violations of human rights. While the European Court showed divergence in the cases of Loizidou and Ilascu, the case-law will in due time contribute to better insights in this respect.
The present case cannot be studied without taking into account the difficult situation in Cyprus since 1974. At the same time it is important that the European Court seeks redress in those situations where individuals have suffered from international political and military developments. The present case has contributed to frustration on both sides of the dividing line which runs through Cyprus. At the same time, it has underlined the importance of taking individual rights into account when seeking a settlement of political problems.
Selected additional cases:ECHR :Ilascu et al. v. Moldova and the Russian Federation (Application No. 48787/99, Judgement of 8 July 2004) and Bankovic et al. v. Belgium and other NATO countries (Application No. 52207/99, Judgement of 12 December 2001).