Turkey - preliminary objections in case concerning access to
property in northern Cyprus, referred to Court by the Government of Cyprus
-
I. Standing of the
applicant Government
The applicant Government have been recognised by the international community
as the Government of the Republic of Cyprus.
Conclusion: its locus standi as the Government of a High
Contracting Party not in doubt.
II. Abuse of process
Since objection not raised before the Commission the Turkish Government
is estopped from raising it before the Court in so far as it applies to
Mrs Loizidou.
In so far as objection is directed to the applicant Government, the
Court notes that this Government have referred the case to the Court inter
alia because of concern for the rights of the applicant and other citizens
in the same situation. Such motivation not an abuse of Court' s procedures.
Conclusion: objection rejected (unanimously).
III.
The Turkish Government' s role in the proceedings
Not within the discretion of a Contracting Party to characterise
its standing in the proceedings before the Court in the manner it sees
fit. Case originates in a petition made under Article 25 against Turkey
in her capacity as a High Contracting Party and has been referred to the
Court under Article 48 (b) by another High Contracting Party.
Conclusion: Turkey is the respondent party in this case.
IV. Scope of the case
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, concerning access
to the applicant's property.
Not 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.
Conclusion: only the above complaints are before the Court.
V. Objections ratione loci
A. Whether the facts alleged by the applicant are capable
of falling within the jurisdiction of Turkey under Article 1 of
the Convention
Court is not called upon at the preliminary objections stage to examine
whether Turkey is actually responsible. This falls to be determined at
the merits phase. Its enquiry is limited to determining whether the matters
complained of are capable of falling within the "jurisdiction" of Turkey
even though they occur outside her national territory.
The concept of "jurisdiction" under Article 1 is not restricted to the
national territory of the High Contracting Parties. Responsibility may
also arise when as a consequence of military action, whether lawful or
unlawful, a Contracting Party exercises effective control of an area outside
its national territory.
Not disputed that the applicant was prevented by Turkish troops by gaining
access to her property.
Conclusion: facts alleged by the applicant are capable of falling
within Turkish "jurisdiction" within the meaning of Article 1 (sixteen
votes to two).
B.
The validity of the territorial restrictions attached to Turkey's Article
25 and 46 declarations
Court has regard to the special character of the Convention as a treaty
for the collective enforcement of human rights; the fact that it is a living
instrument to be interpreted in the light of present-day conditions. In
addition, its provisions are to be interpreted and applied so as to make
its safeguards effective.
Court seeks to ascertain the ordinary meaning given to Articles 25 and
46 in their context and in the light of their object and purpose. Regard
also had to subsequent practice in the application of the treaty.
If Articles 25 and 46 were to be interpreted as permitting restrictions
(other than of a temporal nature) States would be enabled to qualify their
consent under the optional clauses. This would severely weaken the role
of the Commission and Court and diminish the effectiveness of the Convention
as a constitutional instrument of European public order. The consequences
for the enforcement of the Convention would be so far-reaching that a power
should have been expressly provided for. No such provision in either Article
25 or 46.
The subsequent practice of Contracting Parties of not attaching restrictions
ratione loci or ratione materiae confirms the view that these
are not permitted.
Not contested that Article 46 of the Convention was modelled on Article
36 of the Statute of the International Court of Justice. However, the fundamental
difference in the role and purpose of the respective tribunals, coupled
with the existence of a practice of unconditional acceptance, provides
a compelling basis for distinguishing Convention practice from that of
the International Court.
Finally, the application of Article 63 S 4, by analogy, does not provide
support
for the claim that a territorial restriction is permissible.
C. Validity
of the Turkish declarations under Articles 25 and 46
Court does not consider that the issue of 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.
Turkey must have been aware, in view of the consistent practice of Contracting
Parties, that the impugned clause were of questionable validity.
Court finds that the impugned restrictions can be separated from the
remainder of the text, leaving intact the acceptance of the optional clauses.
Conclusion: the territorial restrictions are invalid but the
declarations under Articles 25 and 46 contain valid acceptances of the
competence of the Commission and Court (sixteen votes to two).
VI. Objection ratione temporis
The correct interpretation and application of the restrictions ratione
temporis in the Turkish declarations under Articles 25 and 46, and
the notion of continuing violations of the Convention, raise difficult
legal and factual questions. On the present state of the file, Court does
not have sufficient elements enabling it to decide these questions.
Conclusion: objection joined to the merits of the case (unanimously).
Court's case-law referred to
9.2.1967, Belgium Linguistics case; 7.12.1976, Kjeldsen, Busk Madsen and
Pedersen v. Denmark; 15.1.1978, Ireland v. the United Kingdom; 25.4.1978,
Tyrer v. the United Kingdom; 13.5.1980, Artico v. Italy; 18.12.1986, Johnston
and Others v. Ireland; 29.4.1988, Belilos v. Switzerland; 7.7.1989, Soering
v. the United Kingdom; 20.3.1991, Cruz Varas and Others v. Sweden; 30.10.1991,
Vilvarajah and Others v. the United Kingdom; 26.6.1992, Drozd and Janousek
v. France and Spain; 24.6.1993, Papamichalopoulos and Others v. Greece;
26.10.1993, Stamoulakatos v. Greece.
In the case of Loizidou v. Turkey 1 ,
The European Court of Human Rights sitting, in accordance with Article
43 of the Convention for the Protection of Human Rights and Fundmental
Freedoms ("the Convention") and the relevant provisions of the Rules of
Court A2 , as a Grand Chamber composed of the following judges:
NOTES BY THE REGISTRY
(1) This case is numbered 40/1993/435/514. The first number is the case's
position on the list of cases referred to the Court in the relevant year
(second number). The last two numbers indicate the case's position on the
list of cases refrerred to the Court since its creation and on the list
of the corresponding originating applications to the Commission
(2) Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 and thereafter only to cases concerning States
not bound by that Protocol. They correspond to the Rules that came into
force on January 1983, as amended several times subsequently. |
