138

23.3.1995

JUDGEMENT IN THE CASE OF LOIZIDOU v. TURKEY
(Preliminary objections)

In a judgment delivered at Strasbourg on 23 March 1995 in the case of Loizidou v. Turkey, the European Court of Human Rights, by sixteen votes to two, held that the territorial restrictions attached to Turkey's Article 25 and 46 declarations were invalid but that these declarations contain valid acceptances of the competence of the Commission and Court. It also decided, by a unanimous vote, to join to the merits the preliminary objection that the complaint related to facts and events which occurred before the Turkish declaration of acceptance, pursuant to Article 46 ⁽¹⁾, of the compulsory jurisdiction of the Court dated 22 January 1990 (objection ratione temporis). It is the first case against Turkey to come before the Court.

The judgment was read out in open court by Mr Rolv Ryssdal, President of the Court.

A. Principal facts

The applicant grew up in Kyrenia in northern Cyprus, where she owned certain plots of land. In 1972 she married and moved with her husband to Nicosia. Since 1974 she claims that she has been prevented from gaining access to the above-mentioned properties as a result of the presence of Turkish forces in Cyprus.

On 19 March 1989 a Greek Cypriot women's group, "Women Walk Home", organised a march with the announced intention of crossing the Turkish forces' cease-fire line. From Nicosia the demonstrators drove to the village of Lymbia, where a group managed to cross the buffer zone and the Turkish forces' line. Some of the women, including Mrs Loizidou, were arrested by Turkish Cypriot policemen. Later the same day, they were released to United Nations officials (UNFICYP) in Nicosia and taken over to the Greek Cypriot area.

The Turkish Government submitted, by way of preliminary objections, inter alia, that the case fell outside the Court's jurisdiction on the grounds that it related to facts and events which occurred before the Turkish declaration of acceptance of the jurisdiction of the Court under Article 46 (22 January 1990) (objection ratione temporis) and did not concern matters arising within the territory covered by this declaration (objections ratione loci).

B. Proceedings before the European Commission of Human Rights

The application was lodged with the Commission on 22 July 1989; it was declared admissible on 4 March 1991.

Having attempted unsuccessfully to secure a friendly settlement the Commission drew up a report ⁽¹⁾ on 8 July 1993 in which it established the facts and expressed the opinion that there had been no violation of (1) Article 3 (unanimously); (2) Article 8 as regards the applicant's private life (eleven votes to two); (3) Article 5 s.1 (nine votes to four); (4) Article 8 as regards the applicant's home (nine votes to four) and (5) Article 1 of Protocol No. 1 (eight votes to five).

The case has been referred to the Court by the Government of the Republic of Cyprus under Article 48 (b) of the Convention in so far as it relates to the alleged interference with the applicant's property rights (Article 1 of Protocol no. 1 and Article 8 of the Convention).

II SUMMARY OF THE JUDGMENT ⁽¹⁾

A. The standing of the applicant Government

The Court confined itself to noting, with reference inter alia to the consistent practice of the Council of Europe, that the applicant Government had been recognized by the international community as the Government of the Republic of Cyprus. Its locus standi as the Government of a High Contracting Party cannot therefore be in doubt.

[See paragraphs 39-41 of the judgment.]

B. Abuse of process

The Court observed that this objection was not raised in the proceedings before the Commission. Accordingly the Turkish Government was estopped from raising it before the Court in so far as it applied to Mrs Loizidou.

In so far as it was directed to the applicant Government, the Court noted that this Government have referred the case to the Court inter alia because of their conern for the rights of the applicant and other citizens in the same situation. The Court did not consider such motivation to be an abuse of its procedures.

[See paragraphs 42-46 of the judgment and point 1 of the operative provisions.]

C. The Turkish Government's role in the proceedings

The Court did not consider that it lay within the discretion of a Contracting Party to the Convention to characterise its standing in the proceedings before the Court in the manner it saw fit. It observed that the case originated in a petition made under Article 25, brought by the applicant against Turkey in her capacity as a High Contracting Party to the Convention and had been referred to the Court under Article 48 (b) by another High Contracting Party.

The Court therefore considered - without prejudging the remainder of the issues in these proceedings - that Turkey was the respondent party in this case.

[See paragraphs 47-52 of the judgment.]

D. Scope of the case

In the application referring the case to the Court under Article 48 (b) the applicant Government 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. Accordingly, it is only these complaints which were before the Court.

[See paragraphs 53 and 54 of the judgment.]

E. Objections ratione loci

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

The Court emphasised that it was not called upon at the preliminary objections stage of its procedure to examine whether Turkey was actually responsible under the Convention for the acts which form the basis of the applicant's complaints. Nor is it called upon to establish the principles that govern State responsibility under the Convention in a situation like that obtaining in the northern part of Cyprus. Such questions belong rather to the merits phase of the Court's procedure. The Court's inquiry is limited to determining whether the matters complained of by the applicant 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 exercise effective control of an area outside its national territory.

It was not disputed that the applicant was prevented by Turkish troops from gaining access to her properties.

The Court concluded that the facts alleged by the applicant 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 are questions which fall to be determined by the Court at the merits phase.

[See paragraphs 56-64 of the judgment and point 2 of the operative provisions.]

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

The Court had regard to the special character of the Convention as a treaty for the collective enforcement of human rights and the fact that it is a living instrument to be interpreted in the light of present day conditions. In addition, the object and purpose of the Convention requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.

It then sought to ascertain the ordinary meaning given to Articles 25 and 46 in their context and in the light of their object and purpose. Regard was also had to subsequent practice in the application of the treaty.

If substantive or territorial restrictions were permissible under Articles 25 and 46, Contracting Parties would be free to subscribe to separate regimes of enforcement of Convention obligations depending on the scope of their acceptances. Such a system, which would enable States to qualify their consent under the optional clauses, would not only seriously weaken the role of the Commission and Court in the discharge of their functions, but would also diminish the effectiveness of the Convention as a constitutional instrument of European public order ("ordre public"). Moreover, where the Convention permits States to limit their acceptance under Article 25, there is an express stipulation to this effect (e.g. Article 6 s.2 of Protocol no. 4 and Article 7 s.2 of Protocol No. 7).

In the Court's view, the consequences for the enforcement of the Convention and the achievement of its aims would be so far reaching that a power to this effect should have been expressly provided for. However, no such provision exists in either Article 25 or Article 46.

This approach is confirmed by the subsequent practice of Contracting Parties under these provisions. Since the entry into force of the Convention until the present day, almost all of the thirty parties to the Convention, apart from the respondent Government, have accepted the competence of the Commission and Court to examine complaints without restrictions ratione loci or ratione materiae. The existence of such a uniform and consistent State practice clearly rebuts the respondent Government's arguments that restrictions attaching to Article 25 and Article 46 declarations must have been envisaged by the drafters of the Convention in the light of practice under Article 36 of the Statute of the International Court of Justice.

It was not contested that Article 46 of the Convention was modelled on Article 36 of the Statute of the International Court which has been interpreted as allowing restrictions. However, in the Court's view, it did not follow that such restrictions on the acceptance of jurisdiction of the Court must also be permissible under the Convention.

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 Court did not accept that the application of Article 63 s.4, by analogy, provided support for the claim that a territorial restriction was permissible.

Taking into consideration the character of the Convention, the ordinary meaning of Articles 25 and 46 in their context and in the light of their object and purpose and the practice of Contracting Parties, the Court concluded that the restrictions ratione loci attached to Turkey's Article 25 and Article 46 declarations were invalid.

[See paragraphs 65-89 of the judgment and point 3 of the operative provisions. ]

3. The validity of the Turkish declarations under Articles 25 and 46

The Court did not consider that the issue of severability of the invalid parts of Turkey's declarations could be decided by reference to the statements of her representatives expressed subsequent to the filing of the declarations. In this connection, it observed that the respondent Government must have been aware, in view of the consistent practice of Contracting Parties under Articles 25 and 46 to accept unconditionally the competence of the Commission and Court, that the impugned restrictive clauses were of questionable validity under the Convention system and might be deemed impermissible by the Convention organs.

The subsequent reaction of various Contracting Parties to the Turkish declarations provided convincing support to the above observation concerning Turkey's awareness of the legal postion. That she, against this background, subsequently filed declarations under both Articles 25 and 46 indicated a willingness on her part to run the risk that the limitation clauses at issue would be declared invalid by the Convention institutions without affecting the validity of the declarations themselves.

The Court examined the text of the declarations and the wording of the restrictions with a view to determining whether the impugned restrictions could be severed from the instruments of acceptance or whether they formed an integral and inseparable part of them. It considered that the impugned restrictions could be separated from the remainder of the text leaving intact the acceptance of the optional clauses.

The Court concluded that the declarations of 28 January 1987 and 22 January 1990 under Articles 25 and 46 contain valid acceptances of the competence of the Commission and Court.

[See paragraphs 90-98 of the judgment and point 3 of the operative provisions.]

F. Objection ratione temporis

The Court considered that 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, raised difficult legal and factual questions.

It considered that on the present state of the file it had not sufficient elements enabling it to decide these questions. Moreover, they were so closely connected to the merits of the case that they should not be decided at the present phase of the procedure. It therefore decided to join this objection to the merits.

[See paragraphs 99-105 of the judgment and point 4 of the operative provisions.]

In accordance with the Convention and the Rules of Court, judgment was given by a Grand Chamber composed of eighteen judges, namely Mr R. Ryssdal (Norwegian), President, Mr R. Bernhardt (German), Mr F. Golcuklu (Turkish), Mr L. -E. Pettiti (French), Mr B. Walsh (Irish), Mr R. Macdonald (Canadian), Mr A. Spielmann (Luxemburger), Mr S.K. Martens (Dutch), Mrs E. Palm (Swedish), Mr R. Pekkanen (Finnish), Mr A.N. Loizou (Cypriot), Mr J.M. Morenilla (Spanish), Mr A.B. Baka (Hungarian), Mr M. A. Lopes Rocha (Portuguese), Mr L. Wildhaber (Swiss), Mr G. Mifsud Bonnici (Maltese), Mr p. Jambrek (Slovenian), and Mr U. Lohmus (Estonian), Judges, and also of Mr H. Petzold, Registrar.

A joint dissenting opinion by two judges, as well as their separate dissenting opinions, are annexed to the judgment.

For further information, reference is made to the text of the judgment, which is available on request and will be published shortly as volume 310 of Series A of the Publications of the Court (obtainable from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D - 50939, Koln).

Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.

Registry of the European Court of Human Rights
Registry contact: Montserrat ENRICH/MAS -
External Relations - F - 67075 Strasbourg Cedex
Telephone: 88 41 23 95; Fax: 88 41 27 91

A P P E N D I X

Article 46 of the Convention

"1. Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and without special agreement the jurisdiction of the Court in all matters concerning the interpretation and application of the È Convention.

2. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain other High Contracting Parties or for a specified period.

3. These declarations shall be deposited with the Secretary General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties."

Turkey's Article 46 Declaration of 22 January 1990

"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."