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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

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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.



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