|AS TO THE LAW
I. THE STANDING OF THE APPLICANT GOVERNMENT
39. Throughout the proceedings the Turkish Government systematically
referred to the applicant Government as the "Greek Cypriot administration".
They indicated, without developing any arguments on this point, that they
did not accept the capacity of the applicant Government to represent the
people of Cyprus and that their appearance before the Court in the present
case should not be understood as amounting to any form of recognition of
40. The Court confines itself to noting, with reference inter alia
to the consistent practice of the Council of Europe and the decisions
of the Commission in the inter-State cases of Cyprus v. Turkey, that the
applicant Government have been recognised by the international community
as the Government of the Republic of Cyprus (see in this connection, Applications
nos. 6780/74 and 6950/75, Cyprus v. Turkey, 26 May 1975, Decisions and
Reports (DR) 2, p. 125, at pp. 135-136; no. 8007/77, Cyprus v. Turkey,
10 July 1978, DR 13, p.85, at p. 146). Its locus standi as the Government
of a High Contracting Party to the Convention cannot therefore be in doubt.
Moreover it has not been contested that the applicant is a national of
the Republic of Cyprus.
41. In any event recognition of an applicant Government by a respondent
Government is not a precondition for either the institution of proceedings
under Article 24 of the Convention or the referral of cases to the Court
under Article 48 (see Application no. 8007/77, loc. cit., pp. 147-148).
If it were otherwise, the system of collective enforcement which is a central
element in the Convention system could be effectively neutralized by the
interplay of recognition between individual Governments and States.
II. ALLEGED ABUSE OF
42. The Turkish Government submitted that the overriding aim of the
application was political propaganda. The decision of the applicant Government
to bring the case before the Court was not, in fact, made in order to complain
of the alleged violations of the applicant's rights but rather to stimulate
a debate before the Court on the status of the "Turkish Republic of Northern
Cyprus" (the "TRNC"). Such an approach amounted to an abuse of process.
The complaints therefore fell outside the Court's competence since they
seek to pervert the character of the judicial control procedure.
43. The applicant Government and the Commission took issue with this
submission. The Government of Cyprus argued inter alia that the
applicant's case is one of thousands of instances of displaced persons
who have been deprived of their property because of the illegal Turkish
occupation of northern Cyprus. Moreover, it was only natural that the Government
of Cyprus should be interested in the fate of their citizens. The applicant,
for her part, considered that the claim lacked the status of a preliminary
44. The Court observes that his objection was not raised in the proceedings
before the Commission. Accordingly the Turkish Government is estopped from
raising it before the Court in so far as it applies to Mrs Loizidou.
45. In so far as it is directed to the applicant Government, the Court
notes that this Government have referred the case to the Court inter
alia because of their concern for the rights of the applicant and other
citizens in the same situation. The Court does not consider such motivation
to be an abuse of its procedures.
It follows that this objection must be rejected.
46. In the light of this conclusion it leaves open the question whether
it could refuse jurisdiction in an application by a State under Article
48 (b) on the grounds of its allegedly abusive character.
THE TURKISH GOVERNMENT'S ROLE IN THE PROCEEDINGS
47. The Turkish Government submitted that, in essence, the present case
did not concern the acts or omissions of Turkey but those of the "TRNC"
which they claimed to be an independent State established in the north
of Cyprus. As the only Contracting Party to have recognized the "TRNC",
with whose authorities it has close and friendly relations, its role before
the Court was limited to that of an amicus curiae since the "TRNC"
was not itself able to be a "party" to the present proceedings.
48. For the applicant Government, it was not open to Turkey under the
Rules of Court to change its status in this way and to appear on behalf
of an illegal regime which had been established in defiance of international
law and which has not been recognised by the international community.
49. The applicant for her part considered that the Turkish Government's
position amounted, in effect, to an objection ratione loci.
50. The Commission maintained that Turkey appeared not as an amicus
curiae but as a High Contracting Party to the Convention.
51. The Court does not consider that it lies within the discretion of
a Contracting Party to the Convention to characterize its standing in the
proceedings before the Court in the manner it sees fit. It observes that
the case originates 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 has been referred to the Court under Article 48 (b)
by another High Contracting Party.
52. The Court therefore considers - without prejudging the remainder
of the issued in these proceedings - that Turkey is the respondent Party
in this case.
IV. SCOPE OF THE CASE
53. Before the Commission the applicant complained that her right to
the peaceful enjoyment of her possessions had been affected as a result
of the continued occupation and control of the northern part of Cyprus
by Turkish armed forces which have on several occasions prevented her from
gaining access to her home and other properties there. She submitted that
this state of affairs constituted a continuing violataion of her property
rights contrary to Article 1 of Protocol No.1 to the Convention as well
as a continuing violation of her right to respect for her home contrary
to Article 8 of the Convention. She further alleged violations of Articles
3, 5 S 1 and 8 of the Convention arising out of her arrest and detention
(see paragraph 34 above).
54. In the application referring the present case to the Court under
Article 48 (b) of the Convention 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 (see paragraph 35 above), concerning access to the applicant's
property. Accordingly, as is undisputed, it is only these complaints which
are before the Court. The remaining part of the case concerning the applicant's
arrest and detention thus falls within the competence of the Committee
of Ministers of the Council of Europe in accordance with Article 32 S 1
of the Convention.
The Court notes that the issue whether the Convention and the Rules
of Court permit a partial referral under Article 48, as in the present
case, has not been called into question by those appearing before the Court.
Indeed, Turkey ("the respondent Government") has accepted that the scope
of the case be confined in this way. In these circumstances the Court does
not find it 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.
V. OBJECTIONS RATIONE
55. The respondent Government have filed two preliminary objections
ratione loci. In the first place they claimed that the Court lacks
competence to consider the merits of the case on the grounds that the matters
complained of did not fall within Turkish jurisdiction but within that
of the "TRNC". In the second place they contended that, in accordance with
their declarations under Articles 25 and 46 of the Convention (see paragraphs
3, 15 and 27 above), they had not accepted either the competence of the
Commission or the Court to examine acts and events outside their metropolitan
The Court will examine each of these objections in turn.
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
56. The respondent Government first pointed out that the question of
access to property was obviously outside the realm of Turkey's "jurisdiction".
This could be seen from the fact that it formed one of the core items in
the inter-communal talks between the Greek-Cypriot and Turkish-Cypriot
Furthermore the mere presence of Turkish armed forces in northern Cyprus
was not synonymous with "jurisdiction" any more than it is with the armed
forces of other countries stationed abroad. In fact Turkish armed forces
had never exercised "jurisdiction" over life and property in northern Cyprus.
Undoubtedly it was for this reason that the findings of the Commission
in the inter-State cases of Cyprus v. Turkey (Applications nos. 6780/74,
6950/75 and 8007/77, supra cit.) had not been endorsed by the Committee
of Ministers whose stand was in line with the realities of the situation
prevailing in Cyprus following the intervention of Turkey as one of the
three guarantor powers of the Republic of Cyprus.
Nor did Turkey exercise overall control of the border areas as found
by the Commission in its admissibility decision in the present case. She
shares control with the authorities of the "TRNC" and when her armed forces
act alone they do so on behalf of the "TRNC" which does not dispose of
sufficient forces of its own. The fact that the Turkish armed forces operate
within the command structure of the Turkish army does not alter this position.
According to the respondent Government, far from being a "puppet" State
as alleged by the applicant, the "TRNC" is a democratic constitutional
State with impeccable democratic features and credentials. Basic rights
are effectively guaranteed and there are free elections. It followed that
the exercise of public authority in the "TRNC" was not imputable to Turkey.
The fact that this State has not been recognised by the international community
was not of any relevance in this context.
57. The applicant, whose submissions were endorsed by the Government
of Cyprus, contended that the question of responsibility in this case for
violations of the Convention must be examined with reference to the relevant
principles of international law. In this respect the Commission's approach
which focused on the direct involvement of Turkish officials in violations
of the Convention was not, under international law, the correct one. A
State is, in principle, internationally accountable for violations of rights
occurring in territories over which it has physical control.
According to the applicant, international law recognises that a State
which is thus accountable with respect to a certain territory remains so
even if the territory is administered by a local administration. This is
so whether the local administration is illegal, in that it is the consequence
of an illegal use of force, or whether it is lawful, as in the case of
a protected State or other political dependency. A State cannot avoid legal
responsibility for its illegal acts of invasion and military occupation,
and for subsequent developments, by setting up or permitting the creation
of forms of local administration, however designated. Thus the controlling
powers in the "puppet" States that there were set up in Manchukuo, Croatia
and Slovakia during the period 1939-1945 were not regarded as absolved
from responsibilities for breaches of international law in these administrations
(Whiteman, Digest of International Law, vol. 8, pp. 835-837 (1967)). In
the same vein, the international accountability of the protecting or ultimate
sovereign remains in place even when a legitimate political dependency
is created. This responsibility of the State in respect of protectorates
and autonomous regions is affirmed by the writings of authoritative legal
publicists (Rousseau, Droit international public, Vol. V, 1983, p. 31 (para.
28); Reuter, Droit international public, 6th ed., 1983, p. 262;
Repertoire suisse de droit international public, Vol. III, 1975, pp. 1722-3;
Verzijl, International Law in Historical Perspective, Vol. IV, 1973, pp.
The applicant further submitted that in the present case to apply a
criterion of responsibility which required the direct intervention of Turkish
military personnel in respect of each prima facie violation of the
Convention in northern Cyprus would be wholly at variance with the normal
mode of applying the principles of State responsibility set out above.
To require applicants to fulfil such a standard at the merits stage would
be wholly unrealistic and would also involve a de facto amnesty
and a denial of justice.
Finally, if Turkey was not to be held responsible for conditions in
northern Cyprus, no other legal person can be held responsible. However,
the principle of the effective protection of Convention rights recognised
in the case-law of the Court requires that there be no lacuna in the system
of responsibility. The principles of the Convention system and the international
law of State responsibility thus converge to produce a regime under which
Turkey is responsible for controlling events in northern Cyprus.
58. On this issue the Commission was of the opinion that the applicant
had been prevented from gaining access to her property due to the presence
of Turkish armed forces in the northern part of Cyprus which exercise an
overall control in the border area. This refusal of access was thus imputable
2. The Court's
examination of the issue
59. Article 1 of the Convention reads as follows:
60. The question before the Court is whether its competence to examine
the applicant's complaints is excluded on the grounds that they concern
matters which cannot fall within the "jurisdiction" of the respondent Government.
61. The Court would emphasise that it is not called upon at the preliminary
objections stage of its procedure to examine whether Turkey is 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 enquiry 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.
62. In this respect the Court
recalls that, although Article 1 sets limits on the reach of the Convention,
the concept of "jurisdiction" under this provision is not restricted to
the national territory of the High Contracting Parties. According to its
established case-law, for example, the Court has held that the extradition
or expulsion of a person by a Contracting State may give rise to an issue
under Article 3, and hence engage the responsibility of that State under
the Convention (see, the Soering v. the United Kingdom judgment of 7 July
1989, Series A no. 161, pp. 35-36, S 91; the Cruz Varas and Others v. Sweden
judgment of 20 March 1991, Series A no. 201, p. 28, S 69 and 70 and the
Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991,
Series A no. 215, p. 34, S 103. In addition, the responsibility of Contracting
Parties can be involved because of acts of their authorities, whether performed
within or outside national boundaries, which produce effects outside their
own territory (see the Drozd and Janousek v. France and Spain judgment
of 26 June 1992, Series A no. 240, p.29 S 91).
Bearing in mind the object and purpose of the Convention, the responsibility
of a Contracting Party may 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.
63. In this connection the respondent 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". Furthermore, it has not been disputed that the applicant
was prevented by Turkish troops from gaining access to her property.
64. It follows that such acts are capable of falling within Turkish
"jurisdiction" within the meaning of Article 1 of the Convention. Whether
the matters complained of are imputable to Turkey and give rise to State
responsibility are thus questions which fall to be determined by the Court
at the merits phase.
The validity of the territorial restrictions attached to Turkey's Article
25 and 46 declarations.
65. The relevant provisions of Article 25 of the Convention read as
66. Article 46 of the Convention states:
67. The respondent Government submitted that the relevant territorial and
other restrictions contained in the Article 25 and 46 declarations of 28
January 1987 and 22 January 1990 (as renewed on 22 January 1993) respectively,
are legally valid and bind the Convention institutions. The system set
up under Articles 25 and 46 is an optional one into which Contracting States
may, or may not, "contract-in". There is no indication that the Contracting
Parties agreed when the Convention was being drafted that a partial recognition
of the competence of the Commission and Court was impermissible. If they
had meant to prohibit restrictions in Article 25 and 46 declarations they
would have included a special provision to this effect as is common in
the treaty practice of the Council of Europe.
In fact the Convention system has multiple clauses, such as Articles
63 and 64, Article 6 S 2 of Protocol No. 4 and Article 7 S 2 of Protocol
No. 7, which provide the basis for "a la carte" undertakings by the Contracting
Parties. Moreover, other States have attached substantive restrictions
to their instruments of acceptance such as the United Kingdom (see paragraph
33 above) - in this case a territorial restriction - and Cyprus (see paragraphs
30 and 32 above).
The respondent Government also referred to the established practise
under Article 36 of the Statute of the International Court of Justice to
permit the attachment of substantive, territorial and temporal restrictions
to the optional recognition of the Court's jurisdiction competence. The
wording in Article 36 S 3 of the Statute is, in all material respects,
the same as that used in Articles 25 and 46 of the Convention. In this
connection, the drafting history of the Convention reveals that Article
36 of the Statute served as a model for Article 46 of the Convention. It
is a well established principle in international treaty law that an expression
used in one treaty will bear the same meaning if used in another.
In the respondent Government's further submission, Articles 25 and 46
must be interpreted with reference to their meaning when the Convention
was being drafted. This principle of contemporaneous meaning is part of
the "good faith" interpretation embodied in Article 31 of the Vienna Convention
on the Law of Treaties. At this time, international judicial practice permitted
the addition of conditions or restrictions to any optional recognition
of the jurisdiction of an international tribunal. The fact that the drafters
of the Convention did not choose to use different words indicates that
they intended to give States the same freedom to attach restrictions to
their declarations as is enjoyed under Article 36 of the Statute of the
International Court of Justice.
Finally, with regard to subsequent treaty practise, while there have
been statements opposing the Turkish interpretation of Articles 25 and
46, it has not been established that there is a practise reflecting an
agreement among all Contracting Parties concerning the attachment of conditions
to these instruments of acceptance.
68. For the applicant and the Government of Cyprus, when States make
declarations under Articles 25 and 46 recognising the competence of the
Commission and Court, the only conditions permitted are those ratione
temporis. In reality, the territorial restriction in the Turkish declarations
is tantamount to a disguised reservation.
Furthermore, the long-established practice of the International Court
of Justice in accepting restrictions on the jurisdiction of the Court under
Article 36 of the Statute affords no assistance in the present case because
of the substantial differences between the two systems. The International
Court of Justice is a free-standing international tribunal which has no
links to a standard-setting treaty such as the Convention.
69. The Commission, with reference to its admissibility decision in
the present case, also considered that the restrictions attaching to the
Turkish Article 25 declaration were invalid with the exception of the temporal
restriction. It expressed the same view as regards the territorial restriction
contained in the Article 46 declaration.
70. The Court observes that Articles 25 and 46 of the Convention are
provisions which are essential to the effectiveness of the Convention system
since they delineate the responsibility of the Commission and Court "to
ensure the observance of the engagements undertaken by the High Contracting
Parties" (Article 19), by determining their competence to examine complaints
concerning alleged violations of the rights and freedoms set out in the
Convention. In interpreting these key provisions it must have regard to
the special character of the Convention as a treaty for the collective
enforcement of human rights and fundamental freedoms.
As was observed in the Court's Ireland v. the United Kingdom judgment
of 15 January 1978 (Series A no. 25, p. 90, S 239.
"Unlike international treaties of the classical kind, the Convention
comprises more than mere reciprocal engagements between Contracting States.
It creates over and above a network of mutual bilateral undertakings, objective
obligations which in the words of the preamble benefit from a 'collective
71. That the Convention is a living instrument which must be interpreted
in the light of present-day conditions is firmly rooted in the Court's
case-law (see, inter alia, the Tyrer v. the United Kingdom judgement
of 25 April 1978, Series A no. 26, pp. 15-16, S 31. Such an approach, in
the Court's view, is not confined to the substantive provisions of the
Convention, but also applies to those provisions, such as Articles 25 and
46, which govern the operation of the Convention's enforcement machinery.
It follows that these provisions cannot be interpreted solely in accordance
with the intentions of their authors as expressed more than forty years
Accordingly, even if it had been established, which is not the case,
that restrictions, other than those ratione temporis, were considered
permissible under Articles 25 and 46 at a time when a minority of the present
Contracting Parties adopted the Convention, such evidence could not be
72. In addition, the object and purpose of the Convention as an instrument
for the protection of individual human beings requires that its provisions
be interpreted and applied so as to make its safeguards practical and effective
(see, inter alia, the above-mentioned Soering v. the United Kingdom
judgment, p. 34, S 87, and the Artico v. Italy judgment of 13 May 1980,
Series A no. 37, p.16 S 33.
73. To determine whether Contracting Parties may impose restrictions
on their acceptance of the competence of the Commission and Court under
Articles 25 and 46, the Court will seek 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 (see, inter alia, the Johnston
and Others v. Ireland judgement of 18 December 1986, Series A no. 112,
p.24 S 51, and Article 31 S 1 of the Vienna Convention of 23 May 1969 on
the Law of Treaties). It shall also take into account, together with the
context, "any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation"
(see Article 31 S 3 (b) of the above-mentioned Vienna Convention).
74. Both Article 25 S 2 and Article 46 S 2 of the Convention explicitly
permit the respective declarations to be made for a specified period. These
provisions have been consistently understood as permitting Contracting
Parties also to limit the retrospective application of their acceptance
of the competence of the Commission and the Court (see, inter alia,
the Stamoulakatos v. Greece judgment of 26 October 1993, Series A no.
271, p. 13, S 32. This point has not been disputed.
75. Article 25 contains no express provision for other forms of restrictions
(see paragraph 65 above). In addition, Article 46 S 2 provides that declarations
"may be made unconditionally or on condition or reciprocity£" (see paragraph
If, as contended by the respondent Government, substantive or territorial
restrictions were permissible under these provisions, 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 (see, in this regard, Article 6 S 2 of Protocol No. 4 and
Article 7 S 2 of Protocol No. 7).
In the Court's view, having regard to the object and purpose of the
Convention system as set out above, 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.
76. The Court further notes that Article 64 of the Convention enables
States to enter reservations when signing the Convention or when depositing
their instruments of ratification. The power to make reservations under
Article 64 is, however, a limited one, being confined to particular provisions
of the Convention "to the extent that any law then in force in [the] territory
[of the relevant Contracting Party] is not in conformity with the provision".
In addition reservations of a general nature are prohibited.
77. In the Court's view, the existence of such a restrictive clause
governing reservations suggests that States could not qualify their acceptance
of the optional clauses thereby effectively excluding areas of their law
and practice within their "jurisdiction" from supervision by the Convention
institutions. The inequality between Contracting States which the permissibility
of such qualified acceptances might create would, moreover, run counter
to the aim, as expressed in the Preamble to the Convention, to achieve
greater unity in the maintenance and further realisation of human rights.
78. The above considerations in themselves strongly support the view
that such restrictions are not permitted under the Convention system.
79. 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 only exceptions to
such a consistent practice appear in the restrictions attached to the Cypriot
declaration under Article 25 (see paragraphs 30 and 32) which have now
been withdrawn (see paragraph 32 above) and - as is claimed by the respondent
Government - the United Kingdom Article 25 declaration (see paragraph 33
80. In this respect, the Commission suggested that the restriction was
formulated by the United Kingdom, in the light of Article 63 S 4 of the
Convention, in order to exclude the competence of the Commission to examine
petitions concerning its non-metropolitan territories. In the present context
the Court is not called upon to interpret the exact scope of this declaration
which has been invoked by the respondent Government as an example of a
territorial restriction. Whatever its meaning, this declaration and that
of Cyprus do not disturb the evidence of a practice denoting practically
universal agreement amongst Contracting Parties that Articles 25 and 46
of the Convention do not permit territorial or substantive restrictions.
81. The evidence of such a practice is further supported by the reactions
of the Governments of Sweden, Luxembourg, Denmark, Norway and Belgium,
as well as the Secretary General of the Council of Europe as depositary,
which reserved their positions as regards the legal questions arising as
to the scope of Turkey's first Article 25 declaration (see paragraphs 18-24
above) and the Government of Greece which considered the restrictions to
Turkey's declarations under Article 25 and 46 to be null and void ( see
paragraph 18 above).
82. 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.
83. In this connection, it is not disputed that States can attach restrictions
to their acceptance of the optional jurisdiction of the International Court.
Nor has it been contested that Article 46 of the Convention was modelled
on Article 36 of the Statute. However, in the Court's view, it does not
follow that such restrictions to the acceptance of jurisdiction of the
Commission and Court must also be permissible under the Convention.
84. In the first place, the context within which the International Court
of Justice operates is quite distinct from that of the Convention institutions.
The International Court is called on inter alia to examine any legal
dispute between States that might occur in any part of the globe with reference
to principles of international law. The subject matter of a dispute may
relate to any area of international law. In the second place, unlike the
Convention institutions, the role of the International Court is not exclusively
limited to direct supervisory functions in respect of a law-making treaty
such as the Convention.
85. Such a fundamental difference in the role and purpose of the respective
tribunals, coupled with the existence of a practice of unconditional acceptance
under Articles 25 and 46, provides a compelling basis for distinguishing
Convention practice from that of the International Court.
86. Finally, although the argument has not been elaborated on by the
respondent Government, the Court does not consider that the application
of Article 63 S 4, by analogy, provides support for the claim that a territorial
restriction is permissible under Articles 25 and 46.
According to this argument, Article 25 could not apply beyond national
boundaries to territories, other than those envisaged by Article 63, unless
the State specifically extended it to such territories. As a corollary,
the State can limit acceptance of the right of individual petition to its
national territory - as has been done in the instant case.
87. The Court first recalls that in accordance with the concept of "jurisdiction"
in Article 1 of the Convention, State responsibility may arise in respect
of acts and events outside State frontiers (see paragraph 62 above). It
follows that there can be no requirement, as under Article 63 S 4 in respect
of the overseas territories referred to in that provision, that the Article
25 acceptance be expressly extended before responsibility can be incurred.
88. In addition, regard must be had to the fact that the object and
purpose of Article 25 and Article 63 are different. Article 63 concerns
a decision by a Contracting Party to assume full responsibility under the
Convention for all acts of public authorities in respect of a territory
for whose international relations it is responsible. Article 25, on the
other hand, concerns an acceptance by a Contracting Party of the competence
of the Commission to examine complaints relating to the acts of its own
officials acting under its direct authority. Given the fundamentally different
nature of these provisions, the fact that a special declaration must be
made under Article 63 S 4 accepting the competence of the Commission to
receive petitions in respect of such territories, can have no bearing,
in the light of the arguments developed above, on the validity of restrictions
ratione loci in Article 25 and 46 declarations.
89. 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 concludes
that the restrictions ratione loci attached to Turkey's Article
25 and Article 46 declarations are invalid.
It remains to be examined whether, as a consequence of this finding,
the validity of the acceptances themselves may be called into question.
Validity of the Turkish declarations under Articles 25 and 46
90. The respondent Government submitted that if the restrictions attached
to the Article 25 and 46 declarations were not recognised to be valid,
as a whole, the declarations were to be considered null and void in their
entirety. It would then be for the Turkish Government to draw the political
conclusions from such a situation.
In this connection, the Turkish Delegate at the session of the Committee
of Ministers of the Council of Europe in March 1987 had underlined that
the conditions built into Turkey's Article 25 declaration were so essential
that disregarding any of them would make the entire declaration void with
consequence that Turkey's acceptance of the right of individual petition
would lapse. This position, it was argued, was equally valid for Turkey's
Article 46 declaration.
It was further submitted that in accordance with Article 44 S 3 (a)
and (b) of the Vienna Convention on the Law of Treaties the burden fell
on the applicants to show that the restrictions, in particular the territorial
restrictions, were not an essential basis for Turkey's willingness to make
91. For the applicant, with whom the Government of Cyprus agreed, the
respondent Government, in drafting the terms of these declarations, had
taken the risk that the restrictions would be declared invalid. It should
not now seek to impose the legal consequences of this risk on the Convention
92. The Commission considered that it was Turkey's main intention when
she made her Article 25 declaration on 28 January 1987 to accept the right
of individual petition. It was this intention that must prevail. In addition,
before the Court the Delegate of the Commission pointed out that the respondent
Government had not sought to argue the invalidity of their acceptance of
the right of individual petition in cases which had come before the Commission
subsequent to the present case.
93. In addressing this issue the Court must bear in mind the special
character of the Convention as an instrument of European public order ("ordre
public") for the protection of individual human beings and its mission,
as set out in Article 19, "to ensure the observance of the engagements
undertaken by the High Contracting Parties".
94. It also recalls the finding in its Belilos v. Switzerland judgment
of 29 April 1988, after having struck down an interpretative declaration
on the grounds that it did not conform to Article 64, that Switzerland
was still bound by the Convention notwithstanding the invalidity of the
declaration (Series A no. 132, p. 28, S 60).
95. The Court does not consider that the issue 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 either (as regards the declaration under Article 25) before
the Committee of Ministers and the Commission or (as regards both Articles
25 and 46) in the hearing before the Court. In this connection, it observes
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.
It is of relevance to note, in this context, that the Commission had
already expressed the opinion to the Court in its pleadings in the Belgian
Linguistics (Preliminary objection) and Kjeldsen, Busk Madsen and Pedersen
v. Denmark cases (judgments of 9 February 1967 and 7 December 1976, Series
A nos. 5 and 23 respectively) that Article 46 did not permit any restrictions
in respect of recognition of the Court's jurisdiction (see respectively,
the second memorial of the Commission of 14 July 1966, Series B no. 1,
p. 432, and the memorial of the Commission (preliminary objections) of
26 January 1976, Series B no. 21, p. 119).
The subsequent reaction of various Contracting Parties to the Turkish
declarations (see paragraphs 18-24 above) lends convincing support to the
above observation concerning Turkey's awareness of the legal position.
That she, against this background, subsequently filed declarations under
both Articles 25 and 46 - the latter subsequent to the statements by the
Contracting Parties referred to above - indicates 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. Seen in this light, the ex post facto
statements by Turkish representatives cannot be relied upon to detract
from the respondent Government's basic - albeit qualified - intention to
accept the competence of the Commission and Court.
96. It thus falls to the Court, in the exercise of its responsibilities
under Article 19, to decide this issue with reference to the texts of the
respective declarations and the special character of the Convention regime.
The latter, it must be said, militates in favour of the severance of the
impugned clauses since it is by this technique that the rights and freedoms
set out in the Convention may be ensured in all areas falling within Turkey's
"jurisdiction" within the meaning of Article 1 of the Convention.
97. The Court has examined the text of the declarations and the wording
of the restrictions with a view to determining whether the impugned restrictions
can be severed from the instruments of acceptance or whether they form
an integral and inseparable part of them. Even considering the texts of
the Article 25 and 46 declarations taken together, it considers that the
impugned restrictions can be separated from the remainder of the text leaving
intact the acceptance of the optional clauses.
98. It follows 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.
VI. OBJECTION RATIONE
99. The respondent Government recalled that it has only accepted the
jurisdiction of the Court in respect of facts or events occurring after
22 January 1990 - the date of deposit of the instrument (see paragraph
27 above). They pointed out that the Commission has made a clear distinction
between instantaneous acts, even if they have enduring effects and continuing
violations of Convention rights (Application no. 7379/76, X v. the United
Kingdom, 10 December 1976, DR 8, pp. 211-213, and no. 7317/75, Lynas v.
Switzerland, 6 October 1976, DR 6, pp. 155-169). It has also found that
the action by which a person is deprived of his property does not result
in a continuing situation of absence of property (Application no. 7379/76
supra cit.). However the deprivation of property of which the applicant
complaints is the direct result of an instantaneous act, pursuant to the
Turkish intervention in 1974, which occurred prior to the acceptance of
the Court's jurisdiction.
According to the respondent Government, it follows from the above that
the Court is incompetent ratione temporis since the alleged violation
results from an instantaneous action which occurred prior to Turkey's acceptance
of the optional clauses.
100. The applicant, the Government of Cyprus and the Commission maintained
that the applicant's complaints concern continuing violations of Article
1 of Protocol No. 1 on the ground that she has been and continues to be
prevented by Turkey form using and enjoying her property in the occupied
part of Cyprus. She referred in this respect to the Court's Papamichalopoulos
and Others v. Greece judgment of 24 June 1993 where it was held that a
de facto expropriation of land amounted to a continuing violation
of Article 1 of Protocol No. 1 (Series A no. 260-B, pp. 75-76, S S. 45-46).
The applicant further submitted that the relevant date for the determination
of the Court's jurisdiction was 27 January 1987 - the date of the Turkish
declaration recognising the competence of the Commission - rather than
22 January 1990. She maintained that the case brought before the Court
was that based upon the original application. It would be anomalous if
the Turkish Article 46 declaration, which accepted the jurisdiction of
the Court only in respect of facts which have occurred subsequent to the
deposit of the declaration (see paragraph 27 above), could frustrate the
Court's examination of matters which had been properly referred to it under
Article 48. Such a result would be incompatible with Articles 45 and 48
and would in general conflict with the procedural order created by the
Convention. It would also deprive the applicant of a remedy in respect
of an additional three years of deprivation of her rights.
101. The Commission disagreed on this point. It considered the critical
date to be 22 January 1990 when Turkey recognised the jurisdiction of the
102. The Court recalls that it is open to Contracting Parties under
Article 46 of the Convention to limit, as Turkey has done in her declaration
of 22 January 1990, the acceptance of the jurisdiction of the Court to
matters which occur subsequent to the time of deposit (see paragraph 27
above). It follows that the Court's jurisdiction extends only to the applicant's
allegations of a continuing violation of her property rights subsequent
to 22 January 1990. The different temporal competence of the Commission
and Court in respect of the same complaint is a direct and foreseeable
consequence of separate Convention provisions providing for recognition
of the right of individual petition (Article 25) and the jurisdiction of
the Court (Article 46).
103. The correct interpretation and application of the restrictions
ratione temporis, in the Turkish declarations under Articles 25
and 46 of the Convention, and the notion of continuing violations of the
Convention, raise difficult legal and factual questions.
104. The Court considers that on the present state of the file it has
not sufficient elements enabling it to decide these questions. Moreover,
they are so closely connected to the merits of the case that they should
not be decided at the present phase of the procedure.
105. It therefore decides to join this objection to the merits of the
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the preliminary objection concerning
an alleged abuse of process;
Done in English and in French and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 23 March 1995.
2. Holds by sixteen votes to two that the facts alleged by the
applicant are capable of falling within Turkish "jurisdiction" within the
meaning of Article 1 of the Convention;
3. Holds by sixteen votes to two that the territorial restrictions
attached to Turkey's Article 25 and 46 declarations under the Convention
are invalid but that the Turkish declarations under Articles 25 and 46
contain valid acceptances of the competence of the Commission and Court;
4. Joins unanimously to the merits the preliminary objection
In accordance with Article 51 S 2 of the Convention and Rule 53 S 2 of
the Rules of Court A, the joint dissenting opinion of Mr Golcuklu and Mr
Pettiti and two separate dissenting opinions by them are annexed to this
DISSENTING OPINION OF MR GOLCUKLU AND MR PETTITI
We voted with the majority as regards point 1 of the judgment's operative
provisions, concerning the rejection of the preliminary objection in which
an abuse of process was alleged, and point 4, concerning joinder to the
merits of the preliminary objection ratione temporis. We were in
the minority as regards points 2 and 3, taking the view, essentially, that
the Court could not rule on the issue under Article 1 of the Convention
raised in the Turkish Government's preliminary objection ("everyone within
their jurisdiction") without examining the de jure and de facto
situation in northern Cyprus as to the merits. We consider that the Court
was not yet in possession of all the information it needed in order to
assess the administration of justice, the nature and organisation of the
courts and the question who had "jurisdiction" under the rules of international
law in northern Cyprus and the Green Zone where the United Nations forces
In the first sub-paragraph of paragraph 62 of the judgment the Court
"In this respect the Court recalls that, although Article 1 sets limits
on the reach of the Convention, the concept of "jurisdiction" under this
provision is not restricted to the national territory of the High Contracting
Parties. According to its established case-law, for example, the Court
has held that the extradition or expulsion of a person by a Contracting
State may give rise to an issue under Article 3, and hence engage the responsibility
of that State under the Convention (see the Soering v. the United Kingdom
judgement of 7 July 1989, Series A no. 161, pp. 35-36, S 91; the Cruz Varas
and Others v. Sweden judgement of 20 March 1991, Series A no. 201, p. 28,
S S 69 and 70 and the Vilvarajah and Others v. the United Kingdom judgement
of 30 December 1991, Series A no. 215, p. 34, S 103. In addition, the responsibility
of Contracting Parties can be invoked because of acts of their authorities,
whether performed within or outside national boundaries, which produce
effects outside their own territory (see the Drozd and Janousek v. France
and Spain judgement of 26 June 1992, Series A no. 240, p. 29, S 91.)"
Admittedly the concept of jurisdiction is not restricted to the territory
of the High Contracting Parties, but it is still necessary to explain exactly
why jurisdiction should be ascribed to a Contracting Party and in what
form and manner it is exercised. We note that in the Drozd and Janousek
v. France and Spain judgement cited in paragraph 62 the Court eventually
found that there had been no violation.
While the responsibility of a Contracting Party may be engaged as a
consequence of military action outside its territory, this does not imply
exercise of its jurisdiction. The finding in paragraph 64 does not refer
to any criterion for deciding the question of jurisdiction. In our opinion,
therefore, there is a contradiction between what the Court says in paragraph
62 and its conclusion in paragraph 64, and this contradiction reappears
in the vote on point 2 of the operative provisions. The Court should have
looked into the merits of the question who did or did not have jurisdiction
before ruling on the objection.
regard to the validity of the Turkish Government's declaration
The Court concludes in paragraph 89, on the basis of the considerations
set out in paragraphs 77 to 88, that the restrictions ratione loci
are invalid, while holding that Turkey is bound by the declaration.
Such an approach raises the question whether the Convention institutions
are empowered to sever the terms of a declaration by a High Contracting
Party by declaring them invalid in part. We consider that, regard being
had to the circumstances in which the Turkish declaration was made, its
terms cannot be severed in this way as the case stands at present., since
this would mean ignoring the scope of the undertaking entered into by a
From the point of view of the State concerned this is a manifestation
of its intention, for both public and private law purposes, which fixes
the limits of its accession and consent, in a form of words which it considers
indivisible. The declaration may be declared invalid, but not split into
sections, if it is the State's intention that it should form a whole. It
was up to the political organs and the member States to negotiate and decide
Only five States reserved their positions with regard to the legal issues
which might arise concerning the scope of the first Turkish declaration
(the Greek Goverment contending that the restrictions were null and void).
That means that the other member States and the Committee of Ministers
have not formally contested the declaration as a whole, nor accepted any
one part as essential or subsidiary. Consequently, it cannot be concluded
that there is a uniform and consistent practice (paragraph 82) or practically
universal agreement (paragraph 80).
At this stage it is useful to point out that numerous declarations set
out in instruments of ratification were couched in complex terms or ran
to a number of sections (see the appended declarations of France, the United
Kingdom and the Netherlands; see also those of Malta and Portugal, the
Cypriot declaration of 9 August 1988 or the "colonial" clauses). States
expressly named "territories for those international relations [they were]
responsible"; Turkey has reservations within the strict meaning of the
Convention (800 international treaties include such reservations), the
chart of signatures and ratifications shows that some States have made
both declarations and reservations (see appended table). In the Belgian
Congo case (Decision of 30 May 1961 on the admissibility of application
no. 1065/61, X and Others v. Belgium, Yearbook of the Convention, vol.
4, pp. 261-277) the Commission upheld the international relations argument.
By analogy, in order to determine the scope of a declaration, it should
be pointed out that, according to the Vienna Convention (Article 44: "Separability
of treaty provisions"), a ground for invalidating or terminating a treaty
may only be invoked with respect to particular clauses where "(a) the said
clauses are separable from the remainder of the treaty with regard to their
application" and "(b) it appears from the treaty or is otherwise established
that acceptance of those clauses was not an essential basis of the consent
of the other party or parties to be bound by the treaty as a whole". Accordingly,
in our opinion, it was inappropriate at the stage reached by this case
in the proceedings before the Court to sever the terms of the Turkish declaration.
The only satisfactory solution in our view was to join all the objections
to the merits and to hold a public hearing on the merits giving the Parties
the possibility of adducing all relevant evidence on the expression "within
[the] jurisdiction" (Article 1) and on the way the international relations
of northern Cyprus are conducted. This debate on the merits would also
enable all Parties to make known their views about the international undertakings
and possible intervention of a "third party" or the TRNC under the auspices
of the United Nations, the European Union and the Council of Europe (1989
Declaration consisting in two instruments signed by three signatories,
including the TRNC; References and Reports of the Secretary General of
the United Nations, from 3 April 1992 to 30 May 1994; Council of Europe
report of 15 December 1994, Doc. 7206).