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 that Government. 

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 PROCESS  

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 objection. 

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.  

III. 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 LOCI 

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 territory.  
 

The Court will examine each of these objections in turn.  

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

1. Submissions of those appearing before the Court  

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 Communities. 

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, 6^th 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. 710-11). 

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 to Turkey. 

2. The Court's examination of the issue 

59. Article 1 of the Convention reads as follows:  

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.  

B. 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 follows:  

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 enforcement'." 

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 decisive. 

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 66 above).  

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 above). 

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. 

C. 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 the declarations. 

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 institutions. 

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 TEMPORIS 

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 Court. 

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 case.  

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the preliminary objection concerning an alleged abuse of process;  

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 ratione temporis. 

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 operated.  

In the first sub-paragraph of paragraph 62 of the judgment the Court holds:  

"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. 

With 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 State.  

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 matters otherwise.  

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).