Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LOIZIDOU v. TURKEY (PRELIMINARY OBJECTIONS) - 15318/89 [1995] ECHR 10 (23 March 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/10.html
Cite as: (1995) 20 EHRR 99, [1995] ECHR 10, 20 EHRR 99
[New search] [Contents list] [Help]
In the case of Loizidou v. Turkey (1),
The European Court of Human Rights sitting, in pursuance of
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:
Mr R. Ryssdal, President
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
Mr A. Spielmann,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr P. Jambrek,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 23 June 1994, 22 August 1994,
23 September 1994, 24 November 1994 and on 23 February 1995,
Delivers the following judgment on the preliminary objections,
which was adopted on the last-mentioned date:
_______________
Notes by the Registrar
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 referred 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 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the Government of the
Republic of Cyprus ("the applicant Government") on 9 November 1993,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention"). It
originated in an application (no. 15318/89) against the Republic of
Turkey (see paragraphs 47-52 below) lodged with the European Commission
of Human Rights ("the Commission") under Article 25 (art. 25) on
22 July 1989 by a Cypriot national, Mrs Titina Loizidou.
The applicant Government's application referred to Article 48 (b)
(art. 48-b) of the Convention. The object of the application of the
Government was to obtain a decision as to whether the facts of the case
concerning the applicant's property disclosed a breach by Turkey of its
obligations under Article 1 of Protocol No. 1 (P1-1) and Article 8
(art. 8) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that she
wished to take part in the proceedings and designated the lawyer who
would represent her (Rule 30).
3. The Chamber to be constituted included ex officio Mr F. Gölcüklü
and Mr A.N. Loizou, the elected judges of Turkish and Cypriot
nationality (Article 43 of the Convention) (art. 43), and
Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On
23 November 1993, in the presence of the Registrar, the President drew
by lot the names of the other six members, namely, Mr A. Spielmann,
Mr N. Valticos, Mr R. Pekkanen, Mr A.B. Baka, Mr L. Wildhaber and
Mr P. Jambrek (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. In a letter of 26 November 1993 the Agent of the Turkish
Government stated that his Government considered that the case fell
outside the Court's jurisdiction on the grounds that it related to
events which occurred before Turkey's declaration of acceptance of the
compulsory jurisdiction of the Court dated 22 January 1990 and did not
concern matters arising within the territory covered by this
declaration.
5. On 29 November 1993 the President of the Court submitted to the
plenary Court for decision, pursuant to Rule 34, the question whether
the Government of the Republic of Cyprus had a right under Article 48
(art. 48) to bring the case before the Court.
6. As President of the Chamber (Rule 21 para. 5) Mr Ryssdal, through
the Registrar, consulted the Agents of the Governments, the applicant's
lawyer and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 para. 1 and 38) in relation to the preliminary
objections raised by Turkey. Pursuant to the order made in
consequence, the Registrar received on 17 January 1994, 24 February and
28 February the memorials of the Turkish Government, the applicant and
the applicant Government respectively. The Delegate's observations on
these memorials were submitted on 14 March 1994.
7. On 21 April 1994 the plenary Court considered the issue submitted
to it by the President under Rule 34 and decided, without prejudice to
the preliminary objections raised by Turkey and to the merits of the
case, that the applicant Government had the right to refer the case to
the Court under Article 48 (b) (art. 48-b) of the Convention and that
the Chamber should resume consideration of the case.
8. The Chamber subsequently relinquished jurisdiction in favour of
a Grand Chamber on 27 May 1994 (Rule 51). By virtue of Rule 51
para. 2 (a) and (b) the President and the Vice-President of the Court
(Mr Ryssdal and Mr R. Bernhardt) as well as the other members of the
original Chamber are members of the Grand Chamber. On 28 May 1994 the
names of the additional judges were drawn by lot by the President, in
the presence of the Registrar, namely Mr L.-E. Pettiti, Mr B. Walsh,
Mr R. Macdonald, Mr S.K. Martens, Mrs E. Palm, Mr F. Bigi,
Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici and Mr U. Lohmus.
Subsequently, Mr Valticos, being prevented from taking part in
the proceedings, was replaced by Mr J.M. Morenilla (Rules 24 para. 1
and 51 para. 6). In addition Mr Bigi, being unable to participate in
the Court's deliberations on 22 August and 23 September 1994, took no
further part in the proceedings.
9. In accordance with the President's decision, the hearing of the
preliminary objections took place in public in the Human Rights
Building, Strasbourg, on 22 June 1994. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Turkish Government
Mr B. Çaglar, Agent,
Mr H. Golsong, Counsel,
Mr M. Özmen, Ministry of Foreign Affairs,
Mrs D. Akçay, Ministry of Foreign Affairs, Advisers;
(b) for the Cypriot Government
Mr M. Triantafyllides, Attorney-General, Agent,
Miss P. Polychronidou, Barrister-at-Law, Counsel;
(c) for the Commission
Mr S. Trechsel, Delegate;
(d) for the applicant
Mr A. Demetriades, Barrister-at-Law,
Mr I. Brownlie, QC,
Ms J. Loizidou, Barrister-at-Law, Counsel.
The Court heard addresses by Mr Trechsel, Mr Çaglar, Mr Golsong,
Mr Demetriades, Mr Brownlie and Mr Triantafyllides and also replies to
a question put by one of its members individually.
AS TO THE FACTS
I. Particular circumstances of the case
10. The applicant, a Cypriot national, grew up in Kyrenia in northern
Cyprus. In 1972 she married and moved with her husband to Nicosia.
11. She claims to be the owner of plots of land nos. 4609, 4610,
4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in
northern Cyprus and she alleges that prior to the Turkish occupation
of northern Cyprus on 20 July 1974, work had commenced on plot no. 5390
for the construction of flats, one of which was intended as a home for
her family. She states that she has been prevented in the past, and
is still prevented, by Turkish forces from returning to Kyrenia and
"peacefully enjoying" her property.
12. On 19 March 1989 the applicant participated in a march organised
by a women's group ("Women Walk Home" movement) in the village of
Lymbia near the Turkish village of Akincilar in the occupied area of
northern Cyprus. The aim of the march was to assert the right of Greek
Cypriot refugees to return to their homes.
Leading a group of fifty marchers she advanced up a hill towards
the Church of the Holy Cross in the Turkish-occupied part of Cyprus
passing the United Nations' guard post on the way. When they reached
the churchyard they were surrounded by Turkish soldiers and prevented
from moving any further.
13. She was eventually detained by members of the Turkish Cypriot
police force and brought by ambulance to Nicosia. She was released
around midnight, having been detained for more than ten hours.
14. In his report of 31 May 1989 (Security Council document S/20663)
on the United Nations Operation in Cyprus (for the period
1 December 1988 - 31 May 1989) the Secretary-General of the United
Nations described the demonstration of 19 March 1989 as follows (at
paragraph 11):
"In March 1989, considerable tension occurred over the
well-publicized plans of a Greek Cypriot women's group to
organize a large demonstration with the announced intention of
crossing the Turkish forces cease-fire line. In this connection
it is relevant to recall that, following violent demonstrations
in the United Nations buffer-zone in November 1988, the
Government of Cyprus had given assurances that it would in future
do whatever was necessary to ensure respect for the buffer-zone
... Accordingly, UNFICYP asked the Government to take effective
action to prevent any demonstrators from entering the
buffer-zone, bearing in mind that such entry would lead to a
situation that might be difficult to control. The demonstration
took place on 19 March 1989. An estimated 2,000 women crossed
the buffer-zone at Lymbia and some managed to cross the Turkish
forces' line. A smaller group crossed that line at Akhna. At
Lymbia, a large number of Turkish Cypriot women arrived shortly
after the Greek Cypriots and mounted a counter demonstration,
remaining however on their side of the line. Unarmed Turkish
soldiers opposed the demonstrators and, thanks largely to the
manner in which they and the Turkish Cypriot police dealt with
the situation, the demonstration passed without serious incident.
Altogether, 54 demonstrators were arrested by Turkish Cypriot
police in the two locations; they were released to UNFICYP later
the same day."
A. Turkey's declaration of 28 January 1987 under Article 25
(art. 25) of the Convention
15. On 28 January 1987 the Government of Turkey deposited the
following declaration with the Secretary General of the Council of
Europe pursuant to Article 25 (art. 25) of the Convention (see
paragraph 65 below):
"The Government of Turkey, acting pursuant to Article 25 (1)
(art. 25-1) of the Convention for the Protection of Human Rights
and Fundamental Freedoms hereby declares to accept the competence
of the European Commission of Human Rights and to receive
petitions according to Article 25 (art. 25) of the Convention
subject to the following:
(i) the recognition of the right of petition extends only to
allegations concerning acts or omissions of public authorities
in Turkey performed within the boundaries of the territory to
which the Constitution of the Republic of Turkey is applicable;
(ii) the circumstances and conditions under which Turkey, by
virtue of Article 15 (art. 15) of the Convention, derogates from
her obligations under the Convention in special circumstances
must be interpreted, for the purpose of the competence attributed
to the Commission under this declaration, in the light of
Articles 119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this
declaration shall not comprise matters regarding the legal status
of military personnel and in particular, the system of discipline
in the armed forces;
(iv) for the purpose of the competence attributed to the
Commission under this declaration, the notion of a "democratic
society" in paragraphs 2 of Articles 8, 9, 10 and 11 (art. 8-2,
art. 9-2, art. 10-2, art. 11-2) of the Convention must be
understood in conformity with the principles laid down in the
Turkish Constitution and in particular its Preamble and its
Article 13;
(v) for the purpose of the competence attributed to the
Commission under the present declaration, Articles 33, 52 and 135
of the Constitution must be understood as being in conformity
with Article 10 and 11 (art. 10, art. 11) of the Convention.
This declaration extends to allegations made in respect of facts,
including judgments which are based on such facts which have
occurred subsequent to the date of deposit of the present
declaration. This declaration is valid for three years from the
date of deposit with the Secretary General of the Council of
Europe."
B. Exchange of correspondence between the Secretary General of the
Council of Europe and the Permanent Representative of Turkey
16. On 29 January 1987 the Secretary General of the Council of Europe
transmitted the above declaration to the other High Contracting Parties
to the Convention indicating that he had drawn the Turkish authorities'
attention to the fact that the notification made pursuant to
Article 25 para. 3 (art. 25-3) of the Convention in no way prejudged
the legal questions which might arise concerning the validity of
Turkey's declaration.
17. In a letter dated 5 February 1987 to the Secretary General, the
Permanent Representative of Turkey to the Council of Europe stated that
the wording of Article 25 para. 3 (art. 25-3) of the Convention offered
no basis for expressing opinions or adding comments when transmitting
copies of the Turkish declaration to the High Contracting Parties. He
added:
"International treaty practice, in particular that followed by
the Secretary-General of the United Nations as depositary to
similar important treaties as the Statute of the International
Court of Justice or the covenants and conventions dealing with
human rights and fundamental freedoms, also confirms that the
depositary has to refrain from any comments on the substance of
any declaration made by a Contracting Party."
C. Reactions of various Contracting Parties to Turkey's Article 25
(art. 25) declaration
18. On 6 April 1987 the Deputy Minister for Foreign Affairs of Greece
wrote to the Secretary General stating inter alia that reservations to
the European Convention on Human Rights may not be formulated on the
basis of any provision other than Article 64 (art. 64). He added:
"Furthermore, Article 25 (art. 25) provides neither directly nor
implicitly the possibility of formulating reservations similar
to the reservations set out in the Turkish declaration. The
position cannot be otherwise, for if reservations could be made
on the basis of Article 25 (art. 25), such a method of proceeding
would undermine Article 64 (art. 64) and would sooner or later
destroy the very foundations of the Convention.
...
It follows that the Turkish reservations, as they are outside the
scope of Article 64 (art. 64) must be considered as unauthorised
reservations and, accordingly, as illegal reservations.
Consequently, they are null and void and may not give rise to any
effect in law."
19. In a letter of 21 April 1987 the Permanent Representative of
Sweden wrote to the Secretary General stating inter alia that "the
reservations and declarations ... raise various legal questions as to
the scope of the [Turkish] recognition. The Government therefore
reserves the right to return to this question in the light of such
decisions by the competent bodies of the Council of Europe that may
occur in connection with concrete petitions from individuals".
20. The Minister for Foreign Affairs of Luxembourg, in a letter of
21 April 1987 to the Secretary General stated inter alia that
"Luxembourg reserves to itself the right to express ... its position
in regard to the Turkish Government's declaration" before the competent
bodies of the Council of Europe. He indicated that "the absence of a
formal and official reaction on the merits of the problem should not
... be interpreted as a tacit recognition by Luxembourg of the Turkish
Government's reservations".
21. In a letter of 30 April 1987 to the Secretary General the
Permanent Representative of Denmark stated inter alia as follows:
"In the view of the Danish Government, the reservations and
declarations which accompany the said recognition raise various
legal questions as to the scope of the recognition. The
Government therefore reserves its right to return to these
questions in the light of future decisions by the competent
bodies of the Council of Europe in connection with concrete
petitions from individuals."
22. The Permanent Representative of Norway, in his letter of
4 May 1987 to the Secretary General, stated that the wording of the
declaration could give rise to difficult issues of interpretation as
to the scope of the recognition of the right to petition. He
considered that such issues fell to be resolved by the European
Commission of Human Rights in dealing with concrete petitions. He
added:
"It is therefore desirable to avoid any doubt as to the scope and
validity of the recognition by individual States of this right
which may be raised by generalised stipulations in respect of the
context in which petitions would be accepted as admissible,
interpretative statements or other conditionalities."
23. In a letter dated 26 June 1987 to the Secretary General, the
Permanent Representative of Turkey stated that the points contained in
the Turkish declaration were not to be considered as "reservations" in
the sense of international treaty law. He pointed out, inter alia,
that the only competent organ to make a legally binding assessment as
to the validity of the conditions attaching to the Article 25 (art. 25)
declaration was "the European Commission of Human Rights, when being
seized of an individual application, and eventually the Committee of
Ministers, when acting pursuant to Article 32 (art. 32) of the
Convention".
24. The Permanent Representative of Belgium, in a letter of
22 July 1987 to the Secretary General, stated that the conditions and
qualifications set forth in the declaration raised legal questions as
to the system of protection set up under the Convention. He added:
"Belgium therefore reserves the right to express its position in
regard to the Turkish Government's declaration, at a later stage
and before the competent bodies of the Council of Europe.
Meanwhile the absence of a formal reaction on the merits of the
problem should by no means be interpreted as a tacit recognition
by Belgium of the Turkish Government's conditions and
qualifications."
D. Turkey's subsequent Article 25 (art. 25) declarations
25. Turkey subsequently renewed her declaration under Article 25
(art. 25) of the Convention for three years as from 28 January 1990.
The declaration read as follows:
"The Government of Turkey, acting pursuant to Article 25 (1)
(art. 25-1) of the Convention for the Protection of Human Rights
and Fundamental Freedoms hereby declares to accept the competence
of the European Commission of Human Rights to receive petitions
according to Article 25 (art. 25) of the Convention on the basis
of the following:
(i) the recognition of the right of petition extends only to
allegations concerning acts or omissions of public authorities
in Turkey performed within the boundaries of the national
territory of the Republic of Turkey;
(ii) the circumstances and conditions under which Turkey, by
virtue of Article 15 (art. 15) of the Convention, derogates from
her obligations under the Convention in special circumstances
must be interpreted, for the purpose of the competence attributed
to the Commission under this declaration, in the light of
Articles 119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this
declaration shall not comprise matters regarding the legal status
of military personnel and in particular, the system of discipline
in the armed forces;
(iv) for the purpose of the competence attributed to the
Commission under this declaration, Articles 8, 9, 10 and 11
(art. 8, art. 9, art. 10, art. 11) of the Convention shall be
interpreted by giving special emphasis to `those legal and
factual features which characterize the life of the society'
(European Court of Human Rights, Judgment of 23 July 1968, p. 34)
in Turkey, as expressed notably by the Turkish Constitution
including its Preamble.
This declaration extends to allegations made in respect of facts,
including judgments which are based on such facts which have
occurred subsequent to 28 January 1987, date of the deposit of
the previous declaration by Turkey. This declaration is valid
for three years as from January 28, 1990."
26. A further renewal for a three-year period as from 28 January 1993
reads as follows:
"The Government of Turkey, acting pursuant to Article 25 (1)
(art. 25-1) of the Convention for the Protection of Human Rights
and Fundamental Freedoms, hereby declares to accept the
competence of the European Commission of Human Rights, to receive
petitions which raise allegations concerning acts or omissions
of public authorities in Turkey in as far as they have been
performed within the boundaries of the national territory of the
Republic of Turkey.
This declaration extends to allegations made in respect of facts,
including judgments which are based on such facts which have
occurred subsequent to 28 January 1987, date of the deposit of
the first declaration made by Turkey under Article 25 (art. 25)
of the Convention. This declaration is valid for three years
from 28 January 1993."
E. Turkish declaration of 22 January 1990 under Article 46
(art. 46) of the Convention
27. On 22 January 1990, the Turkish Minister for Foreign Affairs
deposited the following declaration with the Secretary General of the
Council of Europe pursuant to Article 46 (art. 46) of the Convention
(see paragraph 66 below):
"On behalf of the Government of the Republic of Turkey and acting
in accordance with Article 46 (art. 46) of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in accordance
with Article 46 (art. 46) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, hereby
recognises as compulsory ipso facto and without special agreement
the jurisdiction of the European Court of Human Rights in all
matters concerning the interpretation and application of the
Convention which relate to the exercise of jurisdiction within
the meaning of Article 1 (art. 1) of the Convention, performed
within the boundaries of the national territory of the Republic
of Turkey, and provided further that such matters have previously
been examined by the Commission within the power conferred upon
it by Turkey.
This Declaration is made on condition of reciprocity, including
reciprocity of obligations assumed under the Convention. It is
valid for a period of 3 years as from the date of its deposit and
extends to matters raised in respect of facts, including
judgments which are based on such facts which have occurred
subsequent to the date of deposit of the present Declaration."
This declaration was renewed for a period of three years as from
22 January 1993 in substantially the same terms.
28. The Secretary General of the Council of Europe acknowledged
deposit of the Turkish declaration under Article 46 (art. 46) in a
letter dated 26 January 1990 and pointed out that her acknowledgement
was without prejudice to the legal questions that might arise
concerning the validity of the Turkish declaration.
29. In a letter of 31 May 1990 to the Secretary General of the
Council of Europe, the Permanent Representative of Greece stated inter
alia as follows:
"Article 46 (art. 46) of the said Convention is clear and to be
strictly interpreted and applied. It provides that declarations
of recognition of the Court's jurisdiction may be subject to two
conditions only: (a) on condition of reciprocity, if they are not
made unconditionally, and (b) for a specified period.
Consequently, the above-mentioned declaration of the Turkish
Government which, in addition to these two conditions, contains
further restrictions or reservations, is, where the latter are
concerned, incompatible with Article 46 (art. 46) and with the
European Convention on Human Rights in general, as indeed was
already pointed out in the Greek Government's letter of
6 April 1987 in connection with the Turkish Government's
declaration under Article 25 (art. 25) of the said Convention.
It follows that these restrictions or reservations are null and
void and may have no legal effect."
II. Cypriot declaration under Article 25 (art. 25)
30. By letter of 9 August 1988 the Government of Cyprus deposited the
following declaration under Article 25 (art. 25) of the Convention:
"On behalf of the Government of the Republic of Cyprus, I
declare, in accordance with Article 25 (art. 25) of the
Convention for the Protection of Human Rights and Fundamental
Freedoms of 4 November 1950, that the Government of the Republic
of Cyprus recognizes, for the period beginning on 1 January 1989
and ending on 31 December 1991, the competence of the European
Commission of Human Rights to receive petitions submitted to the
Secretary General of the Council of Europe subsequently to
31 December 1988, by any person, non-governmental organisation
or group of individuals claiming, in relation to any act or
decision occurring or any facts or events arising subsequently
to 31 December 1988, to be the victim of a violation of the
rights set forth in that Convention.
On behalf of the Government of the Republic of Cyprus, I further
declare that the competence of the Commission by virtue of
Article 25 (art. 25) of the Convention is not to extend to
petitions concerning acts or omissions alleged to involve
breaches of the Convention or its Protocols, in which the
Republic of Cyprus is named as the Respondent, if the acts or
omissions relate to measures taken by the Government of the
Republic of Cyprus to meet the needs resulting from the situation
created by the continuing invasion and military occupation of
part of the territory of the Republic of Cyprus by Turkey."
31. In a letter dated 12 September 1988, the Secretary General
recalled that according to the general rules, the notification made
pursuant to Article 25 para. 3 (art. 25-3) in no way prejudged the
legal questions that might arise concerning the validity of the Cypriot
declaration.
32. The declaration was renewed in the same terms on 2 January 1992.
By letter of 22 December 1994 it was renewed for a further period of
three years without the restrictions ratione materiae set out above.
III. Declaration of the United Kingdom under Article 25 (art. 25)
33. The United Kingdom's Article 25 (art. 25) declaration of
14 January 1966, which has been renewed successively, reads as follows:
"On instructions from Her Majesty's Principal Secretary of State
for Foreign Affairs, I have the honour to declare in accordance
with the provisions of Article 25 (art. 25) of the Convention for
the Protection of Human Rights and Fundamental Freedoms, signed
at Rome on the 4th November, 1950, that the Government of the
United Kingdom of Great Britain and Northern Ireland recognise,
in respect of the United Kingdom of Great Britain and Northern
Ireland only and not, pending further notification, in respect
of any other territory for the international relations of which
the Government of the United Kingdom are responsible, for the
period beginning on the 14th January 1966, and ending on
13th of January 1969, the competence of the European Commission
of Human Rights to receive petitions submitted to the Secretary
General of the Council of Europe subsequently to the
13th of January 1966, by any person, non-governmental
organisation or group of individuals claiming, in relation to any
act or decision occurring or any facts or events arising
subsequently to the 13th of January 1966, to be the victim of a
violation of the rights set forth in that Convention and in the
Protocol thereto which was opened for signature at Paris on the
20th March 1952.
This declaration does not extend to petitions in relation to
anything done or occurring in any territory in respect of which
the competence of the European Commission of Human Rights to
receive petitions has not been recognised by the Government of
the United Kingdom or to petitions in relation to anything done
or occurring in the United Kingdom in respect of such a territory
or of matters arising there."
PROCEEDINGS BEFORE THE COMMISSION
34. Mrs Loizidou lodged her application (no. 15318/89) on
22 July 1989. She complained that her arrest and detention involved
violations of Articles 3, 5 and 8 (art. 3, art. 5, art. 8) of the
Convention. She further complained that the refusal of access to her
property constituted a continuing violation of Article 8 (art. 8) of
the Convention and Article 1 of Protocol No. 1 (P1-1).
35. On 4 March 1991 the Commission declared the applicant's
complaints admissible in so far as they raised issues under
Articles 3, 5 and 8 (art. 3, art. 5, art. 8) in respect of her arrest
and detention and Article 8 (art. 8) and Article 1 of Protocol No. 1
(P1-1) concerning continuing violations of her right of access to
property alleged to have occurred subsequent to 29 January 1987. Her
complaint under the latter two provisions of a continuing violation of
her property rights before 29 January 1987 was declared inadmissible.
In its report of 8 July 1993 (Article 31) (art. 31), it expressed
the opinion that there had been no violation of Article 3 (art. 3)
(unanimously); Article 8 (art. 8) as regards the applicant's private
life (eleven votes to two); Article 5 para. 1 (art. 5-1) (nine votes
to four); Article 8 (art. 8) as regards the applicant's home (nine
votes to four) and Article 1 of Protocol No. 1 (P1-1) (eight votes to
five). The full text of the Commission's opinion and of the three
separate opinions contained in the report is reproduced as an annex to
this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 310 of Series A
of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
36. At the close of the hearing the Agent of the Turkish Government
stated as follows:
"In the light of what has been stated, it is my honour on behalf
of the Turkish Government to urge the Court to declare that it
has no jurisdiction to examine this case, based on the
application lodged by Mrs Loizidou and referred to the Court by
the Greek Cypriot administration. The allegations made lie
outside the jurisdiction of Turkey within the meaning of
Article 1 (art. 1) of the Convention. As a subsidiary argument,
we would also like the Court to find that it has no jurisdiction
to examine this application filed by Mrs Loizidou on the grounds
of the territorial limitation, which is an integral part of the
recognition by Turkey of the jurisdiction of the Commission,
pursuant to Article 25 (art. 25) of the Convention.
Secondly, on behalf of the Turkish Government, I would ask the
Court to declare that it has no jurisdiction to examine the
application filed by Mrs Loizidou since the alleged facts
occurred prior to the date on which the Turkish declaration,
recognising the Court's jurisdiction, entered into force,
pursuant to Article 46 (art. 46) of the Convention. Furthermore,
the facts occurred prior to the date on which the declaration,
recognising the jurisdiction of the Commission, entered into
force, pursuant to Article 25 (art. 25)."
37. In their memorial, the applicant Government stated:
"For all the above reasons the Cyprus Government submits that
(a) the 'preliminary objections of Turkey' should be rejected,
(b) the reference of the case to the Court by the Cyprus
Government is well founded and is justified in the interest of
the European public order and the protection of the human rights
under the Convention and (c) that the complaints of the applicant
in the above case for violations of her rights under the
Convention are valid."
38. The applicant, in her memorial, concluded as follows:
"On the basis of the considerations set forth above the Court is
requested
(i) to reject all the preliminary objections advanced on behalf
of Turkey; and
(ii) to affirm the existence of jurisdiction in respect of the
continuing violations of Article 1 of Protocol No. 1 (P1-1) and
of Article 8 (art. 8) of the Convention with effect from
28 January 1987 or (in the alternative) with effect from
22 January 1990."
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 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. 135-36;
no. 8007/77, Cyprus v. Turkey, 10 July 1978, DR 13, p. 85, at p. 146).
Their 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 (art. 24) of the Convention or the
referral of cases to the Court under Article 48 (art. 48) (see
application no. 8007/77, loc. cit., pp. 147-48). If it were otherwise,
the system of collective enforcement which is a central element in the
Convention system could be effectively neutralised 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 this 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) (art. 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 recognised 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 characterise 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
(art. 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) (art. 48-b) by another High Contracting
Party.
52. The Court therefore considers - without prejudging the remainder
of the issues 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 violation
of her property rights contrary to Article 1 of Protocol No. 1 (P1-1)
to the Convention as well as a continuing violation of her right to
respect for her home contrary to Article 8 (art. 8) of the Convention.
She further alleged violations of Articles 3, 5 para. 1 and 8 (art. 3,
art. 5-1, art. 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) (art. 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 (P1-1) and Article 8 (art. 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 para. 1 (art. 32-1) of the Convention.
The Court notes that the issue whether the Convention and the
Rules of Court permit a partial referral under Article 48 (art. 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
(art. 25, art. 46) of the Convention (see paragraphs 4, 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
(art. 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 were set up in
Manchukuo, Croatia and Slovakia during the period 1939-45 were not
regarded as absolved from responsibilities for breaches of
international law in these administrations (Whiteman, Digest of
International Law, vol. 8, pp. 835-37 (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; Répertoire suisse de droit international public, vol. III,
1975, pp. 1722-23; 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 (art. 1) of the Convention reads as follows:
"The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I
of [the] Convention."
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
(art. 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 (art. 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, para. 91; the Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 28, paras. 69 and 70, and the
Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, p. 34, para. 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, para. 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 (art. 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. Validity of the territorial restrictions attached to Turkey's
Article 25 and 46 (art. 25, art. 46) declarations
65. The relevant provisions of Article 25 (art. 25) of the Convention
read as follows:
"1. The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person,
non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in [the] Convention, provided
that the High Contracting Party against which the complaint has
been lodged has declared that it recognises the competence of the
Commission to receive such petitions. Those of the High
Contracting Parties who have made such a declaration undertake
not to hinder in any way the effective exercise of this right.
2. Such declarations may be made for a specific period.
..."
66. Article 46 (art. 46) of the Convention states:
"1. Any of the High Contracting Parties may at any time declare
that it recognises as compulsory ipso facto and without special
agreement the jurisdiction of the Court in all matters concerning
the interpretation and application of the ... Convention.
2. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of
several or certain other High Contracting Parties or for a
specified period.
3. These declarations shall be deposited with the Secretary
General of the Council of Europe who shall transmit copies
thereof to the High Contracting Parties."
67. The respondent Government submitted that the relevant territorial
and other restrictions contained in the Article 25 and 46 (art. 25,
art. 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 (art. 25, art. 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 (art. 25, art. 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 (art. 63, art. 64), Article 6 para. 2 of
Protocol No. 4 and Article 7 para. 2 of Protocol No. 7, (P4-6-2,
P7-7-2), which provide the basis for "à 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
practice 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
jurisdictional competence. The wording in Article 36 para. 3 of the
Statute is, in all material respects, the same as that used in
Articles 25 and 46 (art. 25, art. 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 (art. 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 (art. 25, art. 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 that 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 practice, while there
have been statements opposing the Turkish interpretation of
Articles 25 and 46 (art. 25, art. 46), it has not been established that
there is a practice 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 (art. 25, art. 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 (art. 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
(art. 46) declaration.
70. The Court observes that Articles 25 and 46 (art. 25, art. 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) (art. 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 18 January 1978 (Series A no. 25, p. 90, para. 239),
"Unlike international treaties of the classic 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'."
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
judgment of 25 April 1978, Series A no. 26, pp. 15-16, para. 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 (art. 25, art. 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 ago.
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 (art. 25, art. 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
judgment, p. 34, para. 87, and the Artico v. Italy judgment of
13 May 1980, Series A no. 37, p. 16, para. 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 (art. 25, art. 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 judgment of 18 December 1986,
Series A no. 112, p. 24, para. 51, and Article 31 para. 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 para. 3 (b) of
the above-mentioned Vienna Convention).
74. Both Article 25 para. 2 and Article 46 para. 2 (art. 25-2,
art. 46-2) 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, para. 32). This point has not been disputed.
75. Article 25 (art. 25) contains no express provision for other
forms of restrictions (see paragraph 65 above). In addition,
Article 46 para. 2 (art. 46-2) provides that declarations "may be made
unconditionally or on condition of 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 (art. 25), there is an express stipulation to this
effect (see, in this regard, Article 6 para. 2 of Protocol No. 4 and
Article 7 para. 2 of Protocol No. 7) (P4-6-2, P7-7-2).
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 (art. 25, art. 46).
76. The Court further notes that Article 64 (art. 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 (art. 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
(art. 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 (art. 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
para. 4 (art. 63-4) 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 (art. 25, art. 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
(art. 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 (art. 25, art. 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 (art. 25, art. 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
(art. 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 (art. 25, art. 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 para. 4 (art. 63-4), by analogy, provides support for the
claim that a territorial restriction is permissible under Articles 25
and 46 (art. 25, art. 46).
According to this argument, Article 25 (art. 25) could not apply
beyond national boundaries to territories, other than those envisaged
by Article 63 (art. 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 (art. 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 para. 4 (art. 63-4) in respect of the
overseas territories referred to in that provision, that the
Article 25 (art. 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 (art. 25, art. 63) are different.
Article 63 (art. 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 (art. 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 para. 4 (art. 63-4) 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 (art. 25, art. 46) declarations.
89. Taking into consideration the character of the Convention, the
ordinary meaning of Articles 25 and 46 (art. 25, art. 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 (art. 25,
art. 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
(art. 25, art. 46) of the Convention
90. The respondent Government submitted that if the restrictions
attached to the Article 25 and 46 (art. 25, art. 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 (art. 25)
declaration were so essential that disregarding any of them would make
the entire declaration void with the 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
(art. 46) declaration.
It was further submitted that in accordance with Article 44
para. 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 (art. 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 (art. 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
(art. 64), that Switzerland was still bound by the Convention
notwithstanding the invalidity of the declaration (Series A no. 132,
p. 28, para. 60).
95. The 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 either (as regards the declaration
under Article 25) (art. 25) before the Committee of Ministers and the
Commission or (as regards both Articles 25 and 46) (art. 25, art. 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
(art. 25, art. 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 Linguistic (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
(art. 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. 3, vol. I, p. 432, and the
memorial of the Commission (Preliminary objection) 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 (art. 25, art. 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 (art. 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 (art. 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 (art. 25, art. 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 (art. 25, art. 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. 211-13, and no. 7317/75, Lynas v. Switzerland,
6 October 1976, DR 6, pp. 155-69). 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 complains 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 (P1-1) on the ground that she
has been and continues to be prevented by Turkey from 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 (P1-1) (Series A no. 260-B, pp. 75-76, paras. 45-46).
The applicant further submitted that the relevant date for the
determination of the Court's jurisdiction was 28 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 (art. 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 (art. 48).
Such a result would be incompatible with Articles 45 and 48 (art. 45,
art. 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 (art. 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) (art. 25) and the jurisdiction of the
Court (Article 46) (art. 46).
103. The correct interpretation and application of the restrictions
ratione temporis, in the Turkish declarations under Articles 25 and 46
(art. 25, art. 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 (art. 1) of the Convention;
3. Holds by sixteen votes to two that the territorial restrictions
attached to Turkey's Article 25 and 46 (art. 25, art. 46)
declarations under the Convention are invalid but that the
Turkish declarations under Articles 25 and 46 (art. 25, art. 46)
contain valid acceptances of the competence of the Commission and
Court;
4. Joins unanimously to the merits the preliminary objection ratione
temporis.
Done in English and in French and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 23 March 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the joint
dissenting opinion of Mr Gölcüklü and Mr Pettiti and two separate
dissenting opinions by them are annexed to this judgment.
Signed: R. R.
Signed: H. P.
JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ AND PETTITI
(Translation)
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 (art. 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
(art. 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 (art. 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, para. 91; the Cruz Varas and Others
v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28,
paras. 69 and 70; and the Vilvarajah and Others v. the United
Kingdom judgment of 30 October 1991, Series A no. 215, p. 34,
para. 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, para. 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 judgment 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 raised 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 Government 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 whose international relations [they were]
responsible"; Turkey has not done so in respect of northern Cyprus.
Apart from the territorial 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, 1961, vol. 4, pp. 260-76) 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) (art. 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).
APPENDIX
Declaration by France
(3 May 1974)
"Article 15, paragraph 1
...
The Government of the Republic further declares that the
Convention shall apply to the whole territory of the Republic, having
due regard, where the overseas territories are concerned, to local
requirements, as mentioned in Article 63 (art. 63)."
Declaration by the United Kingdom
(14 January 1966)
The British declaration under Article 25 (art. 25) of
14 January 1966, periodically renewed since then, is reproduced in
paragraph 33 of the judgment.
The declaration under Article 63 (art. 63) of 23 October 1953
listed forty-three relevant territories (including Cyprus, the Isle of
Man and Gibraltar). The declaration of 10 June 1964 listed the States
which had become independent. The declaration of 14 August 1964 listed
the territories omitted.
Declaration by the Netherlands
(24 December 1985)
"The island of Aruba, which is at present still part of the
Netherlands Antilles, will obtain internal autonomy as a country within
the Kingdom of the Netherlands as of 1 January 1986. Consequently the
Kingdom will from then on no longer consist of two countries, namely
the Netherlands (the Kingdom in Europe) and the Netherlands Antilles
(situated in the Caribbean region), but will consist of three
countries, namely the said two countries and the country Aruba.
As the changes being made on 1 January 1986 concern a shift only
in the internal constitutional relations within the Kingdom of the
Netherlands, and as the Kingdom as such will remain the subject under
international law with which treaties are concluded, the said changes
will have no consequences in international law regarding treaties
concluded by the Kingdom which already apply to the Netherlands
Antilles, including Aruba. These treaties will remain in force for
Aruba in its new capacity of country within the Kingdom. Therefore
these treaties will as of 1 January 1986, as concerns the Kingdom of
the Netherlands, apply to the Netherlands Antilles (without Aruba) and
Aruba.
Consequently the treaties referred to in the annex, to which the
Kingdom of the Netherlands is a Party and which apply to the
Netherlands Antilles, will as of 1 January 1986 as concerns the Kingdom
of the Netherlands apply to the Netherlands Antilles and Aruba."
Chart of signatures and ratifications of the Convention
(at 31 December 1994) (extracts)
Member Date of Date of Date of R: reservations
States signature ratification entry into D: declarations
or accession force T: territorial
declarations
AUSTRIA 13/12/57 03/09/58 03/09/58 R
CZECH
REP. 21/02/91 18/03/92 01/01/93 R
FINLAND 05/05/89 10/05/90 10/05/90 R
FRANCE 04/11/50 03/05/74 03/05/74 R/T
GERMANY 04/11/50 05/12/52 03/09/53 R
HUNGARY 06/11/90 05/11/92 05/11/92 R
IRELAND 04/11/50 25/02/53 03/09/53 R
LIECHTEN-
STEIN 23/11/78 08/09/82 08/09/82 R
MALTA 12/12/66 23/01/67 23/01/67 D
NETHER-
LANDS 04/11/50 31/08/54 31/08/54 T
PORTUGAL 22/09/76 09/11/78 09/11/78 R
ROMANIA 07/10/93 20/06/94 20/06/94 R
SAN
MARINO 16/11/88 22/03/89 22/03/89 R/D
SLOVAKIA 21/02/91 18/03/92 01/01/93 R
SPAIN 24/11/77 04/10/79 04/10/79 R/D
SWITZER-
LAND 21/12/72 28/11/74 28/11/74 R/D
UNITED
KINGDOM 04/11/50 08/03/51 03/09/53 T
INDIVIDUAL DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
(Translation)
In addition to the matters I raised in my joint dissenting
opinion with Mr Pettiti concerning the preliminary objections on the
questions of "jurisdiction" (Article 1 (art. 1) of the Convention;
paragraphs 62 and 64 of the present judgment) and the "inseparability"
of the Turkish declarations under Articles 25 and 46 (art. 25, art. 46)
of the Convention (paragraphs 93 et seq.), I cannot agree, to my great
regret, with the Court's conclusions on two other aspects of this case.
1. I consider that it is not possible in this case to reach a
conclusion on the role of the "Turkish Government", or in other words
on its status as "respondent", without first looking into the merits
of the case. On 21 April 1994 the plenary Court did not decide whether
Turkey had the status of respondent, but only considered the question
submitted to it by the President, under Rule 34 of Rules A and decided,
without prejudice to the preliminary objections raised by the
Government of Turkey or the merits of the case, that the applicant
Government had standing under Article 48 (b) (art. 48-b) of the
Convention to refer the case to the Court and that the Chamber should
resume consideration of the case (paragraph 7). And in its final
submissions Turkey had asked the Court to hold that the applicant's
allegations lay outside the jurisdiction of Turkey within the meaning
of Article 1 (art. 1) of the Convention. It goes without saying that
this question of "respondent status" is closely bound up with the
question of "jurisdiction" within the meaning of Article 1 (art. 1) of
the Convention. The Court took the view that it was not within the
discretion of a Contracting Party to characterise its standing in the
proceedings before the Court as it saw fit (paragraph 51). By the same
token, the applicant is not entitled to name any State she sees fit as
respondent in a case before the Court, nor is it for the Court to build
a whole procedure on top of this unverified allegation. Therefore,
instead of delivering a separate judgment on this specific question,
as it has done, the Court should have joined the preliminary objection
in question lodged by Turkey to the merits of the case.
2. With regard to point 3 of the judgment's operative provisions,
I entirely agree with the dissenting opinion expressed in this case by
five eminent members of the Commission (Mr Nørgaard, the President, and
Mr Gaukur Jörundsson, Mr Gözübüyük, Mr Soyer and Mr Danelius) in which
they declared (see pp. 55-56 below):
"Moreover, under Article 63 (art. 63) of the Convention, certain
territorial limitations are also expressly provided for.
However, Article 63 (art. 63) concerns territories for whose
international relations a Contracting State is responsible, and
the northern part of Cyprus cannot be regarded as such a
territory. Nevertheless, Article 63 (art. 63) shows that, when
making a declaration under Article 25 (art. 25), a Contracting
State may, in some circumstances, make a distinction between
different territories.
If a State may exclude the application of Article 25 (art. 25)
to a territory referred to in Article 63 (art. 63), there would
seem to be no specific reason why it should not be allowed to
exclude the application of the right of individual petition to
a territory having even looser constitutional ties with the
State's main territory. If this was not permitted, the result
might in some circumstances be that the State would refrain
altogether from recognising the right of individual petition,
which would not serve the cause of human rights.
We consider that the territorial limitation in the Turkish
declaration, in so far as it excludes the northern part of
Cyprus, cannot be considered incompatible with the object and
purpose of the Convention and that it should therefore be
regarded as having legal effect.
In these circumstances, it is not necessary to examine what the
legal consequences would have been if the territorial limitation
had been held not to be legally valid.
It follows that ... the Commission is not competent to deal with
the applicant's complaints of violations of the Convention in
Cyprus. For these reasons, we have voted against any finding of
a violation of the Convention in the present case."
I interpret Article 6 of Protocol No. 7 (P7-6) in the same way.
I would also like to cite, in this connection, another opinion to the
above effect, that of Professor Christian Tomuschat.
"Turkey's refusal to accept the supervisory authority of the
Commission with regard to all other areas than the Turkish
national territory itself ... may be justifiable under
Article 63 para. 4 (art. 63-4). This provision admits of a
differentiation between metropolitan territories and other
territories 'for whose international relations' a State is
'responsible'. Although the text avoids speaking of colonial
territories, the intention of the drafters was precisely to leave
States Parties some latitude with regard to their extra-European
dependencies. If interpreted in this restricted sense,
Article 63 para. 4 (art. 63-4) could not be relied upon by
Turkey. However, doubts may be raised as to the precise scope
of Article 63 para. 4 (art. 63-4). The United Kingdom also
invoked it in respect of its European dependencies, namely the
Bailiwicks of Guernsey and Jersey and the Isle of Man.
Originally, Guernsey and the Isle of Man were mentioned in the
first declaration under Article 25 (art. 25) of 12 September 1967
which defined the competence of the Commission in territorial
terms. When the declaration was renewed for the first time in
1969, Guernsey and the Isle of Man were excluded. Afterwards,
the two territories were again added to the geographical lists
accompanying the relevant declarations. As mentioned above, the
Isle of Man was dropped from those lists in 1976. Strangely
enough, Jersey is mentioned for the first time explicitly in the
declaration of 4 December 1981, though in a positive sense, as
being placed again ('renew') under the control mechanism of
Article 25 (art. 25). To date, no objections have been lodged
against this practice. It might be argued, therefore, that
Article 63 para. 4 (art. 63-4) has evolved into a clause
conferring unfettered discretion on States concerning the
territorial scope of their declarations under Article 25
(art. 25), whenever territories beyond the national boundaries
are concerned.
Additionally, it might be contended that valid substantive
reasons could be identified to support such a conclusion. The
extraterritorial legal effect of human rights standards is
particularly difficult to assess. While there can be no doubt
that States have to refrain from interfering with human rights
irrespective of the place of their actions, to ensure human
rights beyond their boundaries is mostly beyond their
capabilities. It is noteworthy, in this connection, that the
International Covenant on Civil and Political Rights limits the
commitments of States to individuals within their territory and
subject to their jurisdiction (Article 2 para. 1)." ("Turkey's
declaration under Article 25 (art. 25) of the European Convention
on Human Rights", Festschrift für Felix Ermacora, Kehl, Engel,
1988, pp. 128-29).
For other examples supporting this argument, it is sufficient to
cast a glance at the long list of reservations and declarations
deposited by the Contracting States.
I therefore consider valid the territorial restrictions contained
in the Turkish declarations under Articles 25 and 46 (art. 25,
art. 46), applying, at least by analogy, Article 63 (art. 63) of the
Convention.
INDIVIDUAL DISSENTING OPINION OF JUDGE PETTITI
(Translation)
The solution advocated, i.e. joining all the preliminary
objections to the merits, had the advantage of permitting an overall
view of the situation of Cyprus and Turkey regarding the disputes
concerning northern Cyprus. It is not appropriate to sever the
objection ratione loci from interpretation of Article 1 (art. 1); to
my mind these issues are inseparable. Consideration of the merits as
a whole would have made it easier to elucidate the question of the
TRNC's international or other status, and that of the agreement
concluded as a result of the relations and negotiations conducted at
the United Nations, under which people do not enjoy liberty of movement
in both directions.
I consider that this overall examination of the merits, before
consideration of the first objection and the declaration, was necessary
in order to decide the very scope of the declaration. The European
Convention is not an international treaty of the traditional type nor
a synallagmatic convention, as legal writers, and particularly
Professor Cohen-Jonathan, have pointed out, since it is not based on
reciprocity.
It is based on the principle that all individual subjects of law
are its beneficiaries, so that fundamental rights can be protected more
securely. The Court is the guarantor of the Convention and must
endeavour to extend its protection as far as possible; it is therefore
empowered to draw the consequences of instruments deposited by the
States. Consequently, the Court can better fulfil its protective role
by having at its disposal all the information necessary to assess the
legal and factual situation.
In the search for a peaceful compromise, the northern Cyprus
question has been discussed in all international negotiations
concerning Greece, Cyprus and Turkey, including those relating to
European Union customs agreements or GATT agreements.
At the examination of preliminary objections stage, after the
discussion at the public hearing, which was limited to analysis of
these objections by the Parties, the European Court was not able to
take cognisance of all the problems, and this circumstance militated
even more forcefully in favour of joining all these objections to the
merits. To date legal writers have not considered analysis of the
Turkish declaration a simple matter (see Claudio Zanghi,
Christian Tomuschat, Walter Kalin, Pierre-Henri Imbert, Christopher
Lush, etc.).
An overall assessment of the situation, beginning with the
concepts of sovereignty and jurisdiction, would make it possible to
review the criteria ("occupation", "annexation", territorial
application of the Geneva Conventions in northern Cyprus, "conduct of
international relations") on the basis of which the UN has analysed
both the problem whether or not to recognise northern Cyprus as a State
and the problem of the application of the UN Charter (see Security
Council Resolution 930). The responsibilities of the European
Convention institutions, when faced with such difficulties, reflect the
mutual commitment of the member States to ensuring the best and widest
protection of individuals and fundamental rights in the countries
concerned by applying the Convention provisions in a manner consistent
with their object and purpose.