Loizidou v Turkey
| Date | 28 July 1998 |
| Court | European Court of Human Rights |
(Chamber composed of: Ryssdal, President; Bernhardt, Gölcüklü, Pettiti, Walsh, Macdonald, Spielmann, Martens, Palm, Pekkanen, Loizou, Morenilla, Baka, Lopes Rocha, Wildhaber, Mifsud Bonnici, Jambrek, Lōhmus, Judges; Petzold, Registrar)
Human rights — State responsibility — Whether alleged violations capable of falling within the jurisdiction of respondent Government even when occurring outside its national territory — Meaning of jurisdiction under Article 1 of the European Convention on Human Rights — Responsibility arising from effective control over an area as a consequence of lawful or unlawful military action — Northern Cyprus
Recognition — Government — Effect of recognition of government by international community — Granting of locus standi as government of a High Contracting Party to the European Convention on Human Rights
Treaties — Interpretation — Validity of territorial restrictions attached to declarations accepting competence of Commission and Court — Special character of European Convention on Human Rights — Interpretation in light of present-day conditions and so as to make safeguards effective — Ordinary meaning of optional clauses in their context and in light of their object and purpose — Expressly permitted restrictions — Subsequent practice of Contracting Parties — Fundamental differences in the roles and purposes of the International Court of Justice and the European Court of Human Rights
Treaties — Interpretation — Validity of remaining parts of declarations accepting competence of Commission and Court — Severability of invalid restrictions — Relevance of government's statements subsequent to filing of declarations — Government's awareness of consistent State practice
Summary: The facts:—The case originated in an application against the Republic of Turkey lodged with the Commission by Mrs Loizidou. The applicant, a Cypriot national living in Nicosia who owned land in northern Cyprus, claimed that she had been prevented in the past, and was still prevented, by Turkish forces from returning to northern Cyprus and peacefully enjoying her property. Furthermore, in 1989 in the course of a march aimed at asserting the right of Greek Cypriot refugees to return to their homes, the applicant crossed the Turkish forces' line and was arrested and detained by the Turkish Cypriot police for more than ten hours. The applicant alleged that her arrest and detention involved violations of Articles 3, 5 and 8 of the European Convention on Human Rights and that the refusal to grant her access to her property constituted a continuing violation of Article 1 of Protocol No 1 and of Article 8 of the Convention. The Commission held the application admissible in so far as it related to events occurring after the date on which Turkey accepted the right of individual petition under Article 25 of the Convention. In its report of 8 July 1993, the Commission expressed the view that there had been no violation of the Convention or of Protocol No 1.
On 9 November 1993, the Government of the Republic of Cyprus referred the case to the Court to obtain a decision as to whether the facts of the case concerning access to the applicant's property disclosed breaches of Article 1 of Protocol No 1 and Article 8 of the Convention. On 26 November 1993, the Turkish Government stated that it considered that the case fell outside the jurisdiction of the Court, as it related to events which had occurred before Turkey's declaration of acceptance of the compulsory jurisdiction of the Court dated 20 January 1990 and also as it related to matters arising outside the territory covered by this declaration. Turkey also maintained that the application was an abuse of the process of the Court as it had been brought for political purposes.
In its declaration of 28 January 1989, Turkey accepted the competence of the Commission to receive petitions according to Article 25 subject to a number of restrictions, including that the right of petition extended only to allegations concerning acts or omissions of public authorities in Turkey performed ‘within the boundaries of the territory to which the Constitution of the Republic of Turkey’ was applicable. Turkey's subsequent Article 25 declarations in January 1990 and 1993 contained similar reservations, limiting the right to petition to ‘acts performed within the boundaries of the national territory of the Republic of Cyprus’. The declarations also limited the right of individual petition to events occurring after the date on which the first declaration was deposited.
Similarly, in its declaration of 22 January 1990 pursuant to Article 46, Turkey recognised the compulsory jurisdiction of the Court in all matters concerning the interpretation and application of the Convention in relation to the exercise of jurisdiction performed ‘within the boundaries of the national territory of the Republic of' Turkey’ after 22 January 1990. This declaration was renewed for three years from 22 January 1993 in substantially the same terms.
Held (Judges Gölcüklü and Pettiti dissenting in part):—The preliminary objection concerning an alleged abuse of process was dismissed. The facts alleged by the applicant were capable of falling within Turkish ‘jurisdiction’ within the meaning of Article 1 of the Convention. The territorial restrictions attached to Turkey's Article 25 and 46 declarations were invalid but the declarations contained valid acceptances of the competence of the Commission and the Court. The preliminary objection ratione temporis was joined to the merits.
(1) The applicant Government had been recognised by the international community as the Government of the Republic of Cyprus. Its locus standi as the Government to a High Contracting Party could not therefore be in doubt. Recognition of an applicant government by a respondent government was not a precondition for the institution of proceedings under Article 24 of the Convention or for the referral of cases to the Court. If it were otherwise, the system of collective enforcement, a central element in the Convention system, could be neutralized by the interplay of recognition between individual governments and States (p. 637).
(2) The respondent Government was estopped from raising the objection that the aim of the application was political and, as such, an abuse of process in so far as it applied to Mrs Loizidou, as it had not raised it in the proceedings before the Commission. The applicant Government had referred the case to the Court, inter alia because of its concern for the applicant and other citizens in the same situation. This motivation was not an abuse of the Court's procedures (pp. 637–8).
(3) It was not within the discretion of a Contracting Party to characterise its standing in proceedings before the Court in the manner it saw fit. The case originated in a petition made under Article 25 brought by the applicant against Turkey in its capacity as a High Contracting Party to the Convention and had been referred to the Court by another High Contracting Party. Without prejudice to the remainder of the issues in the case, Turkey was the respondent Party in the proceedings (p. 638).
(4) The concept of ‘jurisdiction’ in Article 1 was not restricted to the national territory of the High Contracting Parties. The responsibility of a Contracting Party might also arise when, as a consequence of military action (whether lawful or unlawful), it exercised effective control over an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derived from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate administration. It was not disputed that the applicant's loss of control over her property stemmed from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘trnc’. It followed that such acts were capable of falling within Turkish jurisdiction within the meaning of Article 1. Whether the matters complained of were imputable to Turkey and gave rise to State responsibility had to be determined at the merits stage (pp. 642–3).
(5) In interpreting Articles 25 and 46 regard had to be had to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. It was a living instrument which had to be interpreted in the light of present day conditions and not solely in accordance with the intention of its authors as expressed more than forty years ago. In addition, the object and purpose of the Convention as an instrument for the protection of individual human beings required that its provisions be applied so as to make its safeguards practical and effective (pp. 645–6).
(6) To determine whether Contracting Parties could impose restrictions on their acceptance of the competence of the Commission and Court under Articles 25 and 46, it was necessary to ascertain the ordinary meaning to be given to the terms of these provisions in their context and in the light of their object and purpose. In accordance with Article 31(3)(b) of the Vienna Convention on the Law of Treaties any subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation had to be taken into account (p. 646).
(7) Both Article 25 and Article 46 explicitly permitted declarations to be made for a specified period. Article 25 did not contain express provision for other forms of restrictions whilst Article 46(2) provided that declarations could be made unconditionally or on condition of reciprocity. A system that would enable States to qualify their consent under the optional clauses would seriously weaken the role of the Commission and Court in the discharge of their functions and diminish the effectiveness of the Convention. A...
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