001 58007

CONSEIL COUNCIL
DE L’EUROPE OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS
COURT (CHAMBER)
CASE OF LOIZIDOU v. TURKEY
(Application no. 15318/89)
JUDGMENT
STRASBOURG
18 December 1996
LOIZIDOU v. TURKEY JUDGMENT 1
In the case of Loizidou v. Turkey1,

The European Court of Human Rights, sitting, pursuant to Rule 51 of
Rules of Court A2, 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 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, and Mr P.J. MAHONEY, Deputy
Registrar,
Having deliberated in private on 24 October 1995, 24 January and 28
November 1996,
Delivers the following judgment on the merits, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the Government of the
Republic of Cyprus ("the Cypriot 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
1
The 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) (1 October 1994) 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.
2 LOIZIDOU v. TURKEY JUDGMENT
application (no. 15318/89) against the Republic of Turkey ("the Turkish

Government") 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.
2. In a judgment of 23 March 1995 on various preliminary objections
raised by the Turkish Government (Series A no. 310), the Court dismissed
an objection concerning alleged abuse of process; held that the facts alleged
by the applicant were capable of falling under Turkish "jurisdiction" within
the meaning of Article 1 of the Convention (art. 1) and that the territorial
restrictions attached to Turkey’s Articles 25 and 46 (art. 25, art. 46)
declarations were invalid but that the declarations contained valid
acceptances of the competence of the Commission and Court. It also joined
to the merits the preliminary objection ratione temporis.
3. As President of the Chamber (Rule 21 para. 6), Mr R. Ryssdal, acting
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 merits.
Pursuant to the order made in consequence, the Registrar received the
memorials of the applicant, the Cypriot Government and the Turkish
Government on 29 June, 17 July and 18 July 1995 respectively. In a letter of
2 August the Deputy to the Secretary to the Commission informed the
Registrar that the Delegate would present his observations at the hearing.
4. On 13 September 1995 the Commission, the applicant and the
Cypriot and Turkish Governments submitted their observations on the
question of reference in the proceedings before the Court to a confidential
report of the European Commission of Human Rights in the case of
Chrysostomos and Papachrysostomou v. Turkey which was then pending
before the Committee of Ministers of the Council of Europe, as requested
by the President in a letter of 8 September.
5. In accordance with the President’s decision, the hearing on the merits
took place in public in the Human Rights Building, Strasbourg, on
25 September 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
- for the Turkish Government
Mr B. ÇAGLAR, Agent,
Mr T. ÖZKAROL,
Mr E. APAKAN,
Mr H. GOLSONG,
Mrs D. AKÇAY,
Mr Ö. KORAY,
Mr Z. NECATIGIL, Counsel;
- for the Cypriot Government
Mr A. MARKIDES, Attorney-General, Agent,
Mr M. TRIANTAFYLLIDES, Barrister-at-Law,
Mr M. SHAW, Barrister-at-Law,
Mrs T. POLYCHRONIDOU, Counsel of the Republic A’,
Mrs S.M. JOANNIDES, Counsel of the Republic A’, Counsel,
Mr P. POLYVIOU, Barrister-at-Law,
Mrs C. PALLEY, Consultant
to the Ministry of Foreign Affairs,
Mr N. EMILIOU, Consultant
to the Ministry of Foreign Affairs, Advisers;
- for the Commission
Mr S. TRECHSEL, Delegate;
- 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 Demetriades, Mr
Brownlie, Mr Markides, Mr Shaw, Mr Çaglar, Mrs Akçay, Mr Necatigil and
Mr Golsong, and also replies to its questions.
6. On 26 September 1995, Mr Macdonald decided, pursuant to Rule 24
para. 3 of Rules of Court A, to withdraw from the Grand Chamber. In
accordance with this Rule he informed the President who exempted him
from sitting.
7. On 27 September 1995, the President received a request from the
Turkish Government that Judge Macdonald withdraw from the Chamber.
The Court decided that no response was called for in the light of Judge
Macdonald’s above-mentioned decision to withdraw.
8. On 6 October 1995, the Cypriot Government submitted various court
decisions to which reference had been made at the public hearing.
9. Following the publication by the Committee of Ministers of the
Commission’s report in Chrysostomos and Papachrysostomou v. Turkey,
the President requested, by letter of 19 October 1995, the applicant and the
Government of Cyprus to submit any comments they wished to make. On 6
November, they filed supplementary observations. On 23 November the
Turkish Government submitted a reply.
10. On 3 November 1995 the Turkish Government submitted an article
to which reference had been made at the public hearing.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
11. The applicant, a Cypriot national, grew up in Kyrenia in northern

Cyprus. In 1972 she married and moved with her husband to Nicosia.
12. 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.
Her ownership of the properties is attested by certificates of registration
issued by the Cypriot Lands and Surveys Department at the moment of
acquisition.
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.
13. 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.
14. 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.
15. 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. Turkish military presence in Northern Cyprus
16. Turkish armed forces of more than 30,000 personnel are stationed
throughout the whole of the occupied area of northern Cyprus, which is
constantly patrolled and has checkpoints on all main lines of
communication. The army’s headquarters are in Kyrenia. The 28th Infantry
Division is based in Asha (Assia) with its sector covering Famagusta to the
Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th
Infantry Division, with about 15,500 personnel, is based at Myrtou village,
and its sector ranges from Yerolakkos village to Lefka. TOURDYK
(Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at
Orta Keuy village near Nicosia, with a sector running from Nicosia
International Airport to the Pedhieos River. A Turkish naval command and
outpost are based at Famagusta and Kyrenia respectively. Turkish airforce
personnel are based at Lefkoniko, Krini and other airfields. The Turkish
airforce is stationed on the Turkish mainland at Adana.
17. The Turkish forces and all civilians entering military areas are
subject to Turkish military courts, as stipulated so far as concerns "TRNC
citizens" by the Prohibited Military Areas Decree of 1979 (section 9) and
Article 156 of the Constitution of the "TRNC".
B. Article 159 (1) (b) of the "TRNC" Constitution
18. Article 159 (1) (b) of the 7 May 1985 Constitution of the "Turkish
Republic of Northern Cyprus" (the "TRNC") provides, where relevant, as
follows:
"All immovable properties, buildings and installations which were found abandoned
on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or
which were considered by law as abandoned or ownerless after the above-mentioned
date, or which should have been in the possession or control of the public even though
their ownership had not yet been determined ... and ... situated within the boundaries
of the TRNC on 15 November 1983, shall be the property of the TRNC
notwithstanding the fact that they are not so registered in the books of the Land
Registry Office; and the Land Registry Office shall be amended accordingly."
C. The international response to the establishment of the "TRNC"
19. On 18 November 1983, in response to the proclamation of the

establishment of the "TRNC", the United Nations Security Council adopted
Resolution 541 (1983) which provides, where relevant, as follows:
"The Security Council ...
1. Deplores the declaration of the Turkish Cypriot authorities of the purported

secession of part of the Republic of Cyprus;
2. Considers the declaration ... as legally invalid and calls for its withdrawal ...
6. Calls upon all States to respect the sovereignty, independence, territorial

integrity and non-alignment of the Republic of Cyprus;
7. Calls upon all States not to recognise any Cypriot State other than the Republic
of Cyprus ..."
20. Resolution 550 (1984), adopted on 11 May 1984 in response to the
exchange of "ambassadors" between Turkey and the "TRNC" stated, inter
alia:
"The Security Council ...
1. Reaffirms its Resolution 541 (1983) and calls for its urgent and effective
implementation;
2. Condemns all secessionist actions, including the purported exchange of

ambassadors between Turkey and the Turkish Cypriot leadership, declares them
illegal and invalid and calls for their immediate withdrawal;
3. Reiterates the call upon all States not to recognise the purported State of the
"Turkish Republic of Northern Cyprus" set up by secessionist acts and calls upon
them not to facilitate or in any way assist the aforesaid secessionist entity;
4. Calls upon all States to respect the sovereignty, independence, territorial

integrity, unity and non-alignment of the Republic of Cyprus ..."
21. In November 1983, the Committee of Ministers of the Council of
Europe decided that it continued to regard the Government of the Republic
of Cyprus as the sole legitimate Government of Cyprus and called for the
respect of the sovereignty, independence, territorial integrity and unity of
the Republic of Cyprus.
22. On 16 November 1983 the European Communities issued the
following statement:
"The ten Member States of the European Community are deeply concerned by the
declaration purporting to establish a ‘Turkish Republic of Northern Cyprus’ as an
independent State. They reject this declaration, which is in disregard of successive
resolutions of the United Nations. The Ten reiterate their unconditional support for the
independence, sovereignty, territorial integrity and unity of the Republic of Cyprus.
They continue to regard the Government of President Kyprianou as the sole legitimate
Government of the Republic of Cyprus. They call upon all interested parties not to
recognize this act, which creates a very serious situation in the area."
23. The Commonwealth Heads of Government, meeting in New Delhi
from 23 to 29 November 1983, issued a press communiqué stating, inter
alia, as follows:
"[The] Heads of Government condemned the declaration by the Turkish Cypriot
authorities issued on 15 November 1983 to create a secessionist state in northern
Cyprus, in the area under foreign occupation. Fully endorsing Security Council
Resolution 541, they denounced the declaration as legally invalid and reiterated the
call for its non-recognition and immediate withdrawal. They further called upon all
States not to facilitate or in any way assist the illegal secessionist entity. They
regarded this illegal act as a challenge to the international community and demanded
the implementation of the relevant UN Resolutions on Cyprus."
D. The Turkish declaration of 22 January 1990 under Article 46 of

the Convention (Art. 46)
24. 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 of the Convention (art. 46):
"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 of the Convention (art.
1), 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."
25. The above declaration was renewed for a period of three years as
from 22 January 1993 in substantially the same terms.
PROCEEDINGS BEFORE THE COMMISSION

26. 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 of the Convention (art. 3, art. 5, art. 8). She further
complained that the refusal of access to her property constituted a
continuing violation of Article 8 of the Convention (art. 8) and Article 1 of
Protocol No. 1 (P1-1).
27. 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 and
Article 1 of Protocol No. 1 (art. 8, 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 (art. 8, P1-1) 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
the Loizidou v. Turkey judgment of 23 March 1995 (preliminary
objections), Series A no. 310.
FINAL SUBMISSIONS TO THE COURT

28. In her memorial, the applicant requested the Court to decide and
declare:
1. that the respondent State is responsible for the continuing violations
of Article 1 of Protocol No. 1 (P1-1);
2. that the respondent State is responsible for the continuing violations
of Article 8 (art. 8);
3. that the respondent State is under a duty to provide just satisfaction in
accordance with the provisions of Article 50 of the Convention (art. 50);
and
4. that the respondent State is under a duty to permit the applicant to
exercise her rights, in accordance with the findings of violations of the
Protocol and Convention, freely in the future.
29. The Cypriot Government submitted that:
1. the Court has jurisdiction ratione temporis to deal with the

applicant’s case because Turkey’s declaration under Article 46 of the
Convention (art. 46) did not clearly exclude competence in respect of
violations examined by the Commission after the Turkish declaration of 22
January 1990. Turkey is thus liable for the continuing violations complained
of by the applicant in the period since 28 January 1987;
2. in any event Turkey is liable for those violations continuing in the
period since 22 January 1990 and which have been examined by the
Commission;
3. there is a permanent state of affairs, still continuing, in the Turkish-
occupied area, which is in violation of the applicant’s rights under Article 8
of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1).
30. In their memorial, the Turkish Government made the following
submissions:
1. the applicant was irreversibly deprived of her property situated in
northern Cyprus by an act of the "Government of the Turkish Republic of
Northern Cyprus", on 7 May 1985, at the latest;
2. the act referred to under (1) above does not constitute an act of
"jurisdiction" by Turkey within the meaning of Article 1 of the Convention
(art. 1);
3. Turkey has not violated the rights of the applicant under Article 8 of
the Convention (art. 8).
AS TO THE LAW
31. The applicant and the Cypriot Government maintained that ever
since the Turkish occupation of northern Cyprus the applicant had been
denied access to her property and had, consequently, lost all control over it.
In their submission this constituted a continued and unjustified interference
with her right to the peaceful enjoyment of property in breach of Article 1 of
Protocol No. 1 (P1-1) as well as a continuing violation of the right to respect
for her home under Article 8 of the Convention (art. 8).
The Turkish Government contested this allegation and maintained
primarily that the Court lacked jurisdiction ratione temporis to examine it.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION

32. The Court recalls its findings in the preliminary objections judgment
in the present case that it is open to Contracting Parties under Article 46 of
the Convention (art. 46) to limit, as Turkey has done in its declaration of 22
January 1990, the acceptance of the jurisdiction of the Court to facts which
occur subsequent to the time of deposit and that, consequently, the Court’s
jurisdiction only extends to the applicant’s allegation of a continuing
violation of her property rights subsequent to 22 January 1990. It must now
examine that allegation since in the above-mentioned judgment it decided to
join the questions raised by the objection ratione temporis to the merits (see
the Loizidou v. Turkey judgment of 23 March 1995 (preliminary
objections), Series A no. 310, pp. 33-34, paras. 102-05).
A. The wording of the Article 46 declaration (art. 46)
33. In their memorial on the merits, the Cypriot Government submitted

that Turkey’s Article 46 (art. 46) declaration was ambiguously worded. The
absence of a comma in the final sentence after the word "facts", where it
occurs for the second time, made it unclear whether the words "which have
occurred subsequent to the date of deposit" qualified "facts" (when first
used) or "judgments" (see paragraph 24 above). The same observation was
made as regards the Government’s Article 25 (art. 25) declarations. In their
submission, all Convention enforcement organs, which have jurisdiction
conferred upon them, enjoy jurisdiction retroactively to the time of
ratification of the Convention unless there has been an express and
unambiguously worded restriction ratione temporis. However, the latter
requirement, they claimed, was not satisfied in the present case.
34. The Court sees no merit in this argument. In its view the reading of
the present text in the manner contended by the Cypriot Government would
render the last sentence of the declaration almost unintelligible. It considers
that the intention of the Turkish Government to exclude from the Court’s
jurisdiction all matters raised in respect of facts which occurred prior to the
date of deposit of the Article 46 (art. 46) declaration is sufficiently evident
from the words used in the last sentence and can be reasonably inferred
from them. Moreover, it notes that the Commission has construed in a
similar fashion identical language and punctuation in Turkey’s Article 25
(art. 25) declarations (see the decision of admissibility in applications nos.
15299/89, 15300/89 and 15318/89 (joined), Chrysostomos,
Papachrysostomou and Loizidou v. Turkey, 4 March 1991, Decisions and
Reports (DR) 68, pp. 250-51, paras. 50-60).
B. Further arguments of those appearing before the Court
35. The Turkish Government, for their part, contended that the process
of the "taking" of property in northern Cyprus started in 1974 and ripened
into an irreversible expropriation by virtue of Article 159 (1) (b) of the
"TRNC" Constitution of 7 May 1985 (see paragraph 18 above) justified
under the international-law doctrine of necessity. In this context they
contended that the "TRNC" is a democratic and constitutional state whose
Constitution was accepted by a referendum. Following a process of political

and administrative evolution, the "TRNC" was established by the Turkish
Cypriot people in pursuance of their right to self-determination and thus was
able to make valid law. Moreover, the effectual and autonomous nature of
the administration in the northern part of Cyprus had been recognised in
various court decisions in the United Kingdom (Hesperides Hotels Ltd and
Another v. Aegean Turkish Holidays Ltd and Another [1977] 3 Weekly
Law Reports 656 (Court of Appeal) and Polly Peck International PLC v.
Asil Nadir and Others [1992] 2 All England Reports 238 (Court of
Appeal)).
Furthermore, in finding that the arrest and detention of the applicants in
the case of Chrysostomos and Papachrysostomou v. Turkey were lawful, the
Commission and subsequently the Committee of Ministers of the Council of
Europe had recognised as valid the relevant laws of the "TRNC" (see report
of the Commission of 8 July 1993, paras. 143-70 and Resolution DH (95)
245 of 19 October 1995).
In the Turkish Government’s submission, the applicant had thus
definitively lost ownership of the land well before the crucial date of 22
January 1990, i.e. on 7 May 1985 at the latest. The judgment of the Court in
the Papamichalopoulos and Others v. Greece case (of 24 June 1993, Series
A no. 260-B), where the Court had found that there had been a continuing
interference with the applicant’s property rights, was moreover
distinguishable on the ground that the Greek Government had not raised any
objection ratione temporis in that case.
It followed, in their submission, that the Court was concerned in the
present case with an instantaneous act which predated the Government’s
acceptance of the Court’s jurisdiction under Article 46 (art. 46). It was thus
incompetent ratione temporis to examine the applicant’s complaints.
36. The applicant, whose submissions were endorsed by the
Government of Cyprus, maintained that the fact that she had been denied
access to her property ever since 1974 and, consequently, had lost all
control over it constituted a continuing violation of her rights and that the
jurisprudence of the Convention institutions and other international
tribunals recognised this concept. She stressed that the rules of international
law must be taken into account when interpreting the Convention and
contended that the 1985 Constitution of the "TRNC" was - as was
recognised by the international community - invalid under international law,
because its origin lay in the illegal use of force by Turkey. A second reason
was that the policy of the Turkish authorities was based upon racial
discrimination in breach of Article 14 of the Convention (art. 14) and of
customary international law. Accordingly, no effect should be given to the
confiscatory provisions of the 1985 Constitution.
37. In the submission of the Government of Cyprus, the denial of
peaceful enjoyment of the possessions of Greek Cypriots in the occupied
area has been effected by a systematic and continuing process. They denied,
however, that this process had amounted to loss of ownership. Evidence for
this contention was provided by the Settlement and Distribution of Land and
Property of Equivalent Value Law of 28 August 1995 which, according to
the Government, purports to extend what were hitherto limited permits to
occupy Greek property and by the fact that Turkey alleged that there had
been no confiscation of Greek property in northern Cyprus in a memorial
circulated within the Committee of Ministers in 1987.
38. As explained by the Commission’s Delegate at the hearing on the
preliminary objections, the Commission also considered that the applicant’s
complaints under Article 1 of Protocol No. 1 (P1-1) and Article 8 of the
Convention (art. 8) concerned violations which were essentially of a
continuing nature. In his written observations on the preliminary objections,
the Delegate had therefore taken the view that the Court has competence to
deal with these complaints as far as they involved the period after 22
January 1990. Moreover, at the hearing on the merits the Delegate, with the
endorsement of the applicant, asked the Court to consider whether Turkey
should be estopped from introducing new facts relating to the provisions of
the 1985 Constitution which had not been referred to during the proceedings
before the Commission.
C. The Court’s assessment
39. The Court first observes, as regards the estoppel submission, that in
principle it is not prevented in its examination of the merits of a complaint
from having regard to new facts, supplementing and clarifying those
established by the Commission, if it considers them to be of relevance (see
the McMichael v. the United Kingdom judgment of 24 February 1995,
Series A no. 307-B, p. 51, para. 73, and the Gustafsson v. Sweden judgment
of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 655, para.
51).
40. Although in the present case the objection ratione temporis was
raised by the Turkish Government in the proceedings before the
Commission, there was no discussion or analysis in its admissibility
decision of 4 March 1991 as to whether the matters complained of involved
a continuing situation or an instantaneous act. This point, although touched
on to some extent before the Court at the preliminary objections phase, was
the subject of detailed submissions only in the proceedings on the merits,
the new information being mentioned for the first time in the Turkish
Government’s written memorial but also in the appendices to the Cypriot
Government’s memorial. Against this background, the plea of estoppel must
fail.
41. The Court recalls that it has endorsed the notion of a continuing
violation of the Convention and its effects as to temporal limitations of the
competence of Convention organs (see, inter alia, the Papamichalopoulos

and Others v. Greece judgment of 24 June 1993, Series A no. 260-B, pp. 69-
70, paras. 40 and 46, and the Agrotexim and Others v. Greece judgment of
24 October 1995, Series A no. 330-A, p. 22, para. 58).
Accordingly, the present case concerns alleged violations of a continuing
nature if the applicant, for purposes of Article 1 of Protocol No. 1 (P1-1)
and Article 8 of the Convention (art. 8), can still be regarded - as remains to
be examined by the Court - as the legal owner of the land.
42. The Court has had regard to the Turkish Government’s allegation
that "the process of ‘the taking’ of property in northern Cyprus started in
1974 and ripened into an irreversible expropriation by virtue of Article 159
of the ‘TRNC’ Constitution of 7 May 1985" (see paragraph 35 above). The
formulation of this assertion suggests that in the Turkish Government’s
view the applicant had not lost ownership of the land before 7 May 1985; if
it should be understood differently, the Turkish Government have failed to
clarify in what manner the loss of ownership occurred before that date. The
Court will therefore concentrate on the Government’s submission that
ownership was lost in 1985 as a result of the operation of Article 159 of the
"TRNC" Constitution (see paragraph 18 above).
In this context the Court takes note of United Nations Security Council
Resolution 541 (1983) declaring the proclamation of the establishment of
the "TRNC" as legally invalid and calling upon all States not to recognise
any Cypriot State other than the Republic of Cyprus. A similar call was
reiterated by the Security Council in Resolution 550 (adopted on 11 May
1984). In November 1983 the Committee of Ministers of the Council of
Europe also condemned the proclamation of statehood and called upon all
States to deny recognition to the "TRNC" (see paragraphs 19-21 above). A
position to similar effect was taken by the European Community and the
Commonwealth Heads of Government (see paragraphs 22-23 above).
Moreover it is only the Cypriot Government which is recognised
internationally as the Government of the Republic of Cyprus in the context
of diplomatic and treaty relations and the working of international
organisations (see the Commission’s decisions on the admissibility of
applications nos. 6780/74 and 6950/75, Cyprus v. Turkey, 26 May 1975,
DR 2, pp. 135-36; no. 8007/77, Cyprus v. Turkey, 10 July 1978, DR 13, p.
146).
43. It is recalled that the Convention must be interpreted in the light of
the rules of interpretation set out in the Vienna Convention of 23 May 1969
on the Law of Treaties and that Article 31 para. 3 (c) of that treaty indicates
that account is to be taken of "any relevant rules of international law
applicable in the relations between the parties" (see, inter alia, the Golder v.
the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 14,
para. 29, the Johnston and Others v. Ireland judgment of 18 December
1986, Series A no. 112, p. 24, para. 51, and the above-mentioned Loizidou
judgment (preliminary objections), p. 27, para. 73).
In the Court’s view, the principles underlying the Convention cannot be
interpreted and applied in a vacuum. Mindful of the Convention’s special
character as a human rights treaty, it must also take into account any
relevant rules of international law when deciding on disputes concerning its
jurisdiction pursuant to Article 49 of the Convention (art. 49).
44. In this respect it is evident from international practice and the
various, strongly worded resolutions referred to above (see paragraph 42)
that the international community does not regard the "TRNC" as a State
under international law and that the Republic of Cyprus has remained the
sole legitimate Government of Cyprus - itself, bound to respect international
standards in the field of the protection of human and minority rights.
Against this background the Court cannot attribute legal validity for
purposes of the Convention to such provisions as Article 159 of the
fundamental law on which the Turkish Government rely.
45. The Court confines itself to the above conclusion and does not
consider it desirable, let alone necessary, in the present context to elaborate
a general theory concerning the lawfulness of legislative and administrative
acts of the "TRNC". It notes, however, that international law recognises the
legitimacy of certain legal arrangements and transactions in such a situation,
for instance as regards the registration of births, deaths and marriages, "the
effects of which can be ignored only to the detriment of the inhabitants of
the [t]erritory" (see, in this context, Advisory Opinion on Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution
276 (1970), [1971] International Court of Justice Reports 16, p. 56, para.
125).
46. Accordingly, the applicant cannot be deemed to have lost title to her
property as a result of Article 159 of the 1985 Constitution of the "TRNC".
No other facts entailing loss of title to the applicant’s properties have been
advanced by the Turkish Government nor found by the Court. In this
context the Court notes that the legitimate Government of Cyprus have
consistently asserted their position that Greek Cypriot owners of immovable
property in the northern part of Cyprus such as the applicant have retained
their title and should be allowed to resume free use of their possessions,
whilst the applicant obviously has taken a similar stance.
47. It follows that the applicant, for the purposes of Article 1 of
Protocol No. 1 (P1-1) and Article 8 of the Convention (art. 8), must still be
regarded to be the legal owner of the land. The objection ratione temporis
therefore fails.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

(P1-1)
48. The applicant contended that the continuous denial of access to her
property in northern Cyprus and the ensuing loss of all control over it are
imputable to the Turkish Government and constitute a violation of Article 1
of Protocol No. 1 (P1-1), which reads as follows:
"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions (P1-1) shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties."
A. The imputability issue
49. The applicant insisted, in line with her submissions concerning the
preliminary objection ratione materiae (Loizidou judgment (preliminary
objections) cited above at paragraph 32, pp. 22-23, paras. 57-58), that the
present case was exceptional in that the authorities alleged to have
interfered with the right to the peaceful enjoyment of possessions are not
those of the sole legitimate Government of the territory in which the
property is situated. That particularity entailed that, in order to determine
whether Turkey is responsible for the alleged violation of her rights under
Article 1 of Protocol No. 1 (P1-1) with respect to her possessions in
northern Cyprus, the Court should take into account the principles of State
responsibility under international law. In this context Mrs Loizidou repeated
her criticism that the Commission had focused too much on the direct
involvement of Turkish officials in the impugned continuous denial of
access. Whilst evidence of direct involvement of Turkish officials in
violations of the Convention is relevant, it is not a legal condition of
responsibility under public international law.
She went on to contend that the concept of State responsibility rested on
a realistic notion of accountability. A State was responsible in respect of
events in the area for which it is internationally responsible, even if the
conduct or events were outside its actual control. Thus, even acts of officials
which are ultra vires may generate State responsibility.
According to international law, in the applicant’s submission, the State
which is recognised as accountable in respect of a particular territory
remained accountable even if the territory is administered by a local
administration. This was the legal position 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 dependency. A State

cannot by delegation avoid responsibility for breaches of its duties under
international law, especially not for breaches of its duties under the
Convention which, as illustrated by the wording of Article 1 of the
Convention (art. 1), involve a guarantee to secure Convention rights.
Mrs Loizidou maintained that the creation of the "TRNC" was legally
invalid and no State, except Turkey, or international organisation has
recognised it. Since the Republic of Cyprus obviously cannot be held
accountable for the part of the island occupied by Turkey, it must be Turkey
which is so accountable. Otherwise the northern part of Cyprus would
constitute a vacuum as regards responsibility for violations of human rights,
the acceptance of which would be contrary to the principle of effectiveness
which underlies the Convention. In any case there is overwhelming
evidence that Turkey has effective overall control over events in the
occupied area. She added that the fact that the Court, at the preliminary
objections phase of the present case, had found Turkey to have jurisdiction
created a strong presumption of Turkish responsibility for violations
occurring in the occupied area.
50. According to the Cypriot Government, Turkey is in effective
military and political control of northern Cyprus. It cannot escape from its
duties under international law by pretending to hand over the administration
of northern Cyprus to an unlawful "puppet" regime.
51. The Turkish Government denied that they had jurisdiction in
northern Cyprus within the meaning of Article 1 of the Convention (art. 1).
In the first place they recalled the earlier case-law of the Commission which
limited the jurisdiction of Turkey "to the border area and not to the whole of
northern Cyprus under the control of the Turkish Cypriot authorities" (see
the Commission’s decisions on the admissibility of applications nos.
6780/74, 6950/75 and 8007/77, cited in paragraph 42 above). In the second
place, the presumption of control and responsibility argued for by the
applicants was rebuttable. In this respect it was highly significant that the
Commission in the Chrysostomos and Papachrysostomou v. Turkey report
of 8 July 1993 found that the applicants’ arrest, detention and trial in
northern Cyprus were not "acts" imputable to Turkey. Moreover, the
Commission found no indication of control exercised by the Turkish
authorities over the prison administration or the administration of justice by
Turkish Cypriot authorities in the applicant’s case (cited above at paragraph
32).
In addition, the Turkish Government contended that the question of
jurisdiction in Article 1 of the Convention (art. 1) is not identical with the
question of State responsibility under international law. Article 1 (art. 1)
was not couched in terms of State responsibility. In their submission this
provision (art. 1) required proof that the act complained of was actually
committed by an authority of the defendant State or occurred under its direct
control and that this authority at the time of the alleged violation exercised
effective jurisdiction over the applicant.
Furthermore they argued that seen from this angle, Turkey had not in this
case exercised effective control and jurisdiction over the applicant since at
the critical date of 22 January 1990 the authorities of the Turkish Cypriot
community, constitutionally organised within the "TRNC" and in no way
exercising jurisdiction on behalf of Turkey, were in control of the property
rights of the applicant.
In this context they again emphasised that the "TRNC" is a democratic
and constitutional State which is politically independent of all other
sovereign States including Turkey. The administration in northern Cyprus
has been set up by the Turkish Cypriot people in the exercise of its right to
self-determination and not by Turkey. Moreover, the Turkish forces in
northern Cyprus are there for the protection of the Turkish Cypriots and
with the consent of the ruling authority of the "TRNC". Neither the Turkish
forces nor the Turkish Government in any way exercise governmental
authority in northern Cyprus. Furthermore, in assessing the independence of
the "TRNC" it must also be borne in mind that there are political parties as
well as democratic elections in northern Cyprus and that the Constitution
was drafted by a constituent assembly and adopted by way of referendum.
52. As regards the question of imputability, the Court recalls in the first
place that in its above-mentioned Loizidou judgment (preliminary
objections) (pp. 23-24, para. 62) it stressed that under its established case-
law the concept of "jurisdiction" under Article 1 of the Convention (art. 1) is
not restricted to the national territory of the Contracting States. Accordingly,
the responsibility of Contracting States can be involved by acts and
omissions of their authorities which produce effects outside their own
territory. Of particular significance to the present case the Court held, in
conformity with the relevant principles of international law governing State
responsibility, that the responsibility of a Contracting Party could 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 (see the above-mentioned Loizidou judgment (preliminary
objections), ibid.).
53. In the second place, the Court emphasises that it will concentrate on
the issues raised in the present case, without, however, losing sight of the
general context.
54. It is important for the Court’s assessment of the imputability issue
that the Turkish 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" (see
the above-mentioned preliminary objections judgment, p. 24, para. 63).

Furthermore, it has not been disputed that the applicant has on several
occasions been prevented by Turkish troops from gaining access to her
property (see paragraphs 12-13 above).
However, throughout the proceedings the Turkish Government have
denied State responsibility for the matters complained of, maintaining that
its armed forces are acting exclusively in conjunction with and on behalf of
the allegedly independent and autonomous "TRNC" authorities.
55. The Court recalls that under the scheme of the Convention the
establishment and verification of the facts is primarily a matter for the
Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). It is not,
however, bound by the Commission’s findings of fact and remains free to
make its own appreciation in the light of all the material before it (see, inter
alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991,
Series A no. 201, p. 29, para. 74, the Klaas v. Germany judgment of 22
September 1993, Series A no. 269, p. 17, para. 29, and the McCann and
Others v. the United Kingdom judgment of 27 September 1995, Series A
no. 324, p. 50, para. 168).
56. The Commission found that the applicant has been and continues to
be denied access to the northern part of Cyprus as a result of the presence of
Turkish forces in Cyprus which exercise an overall control in the border
area (see the report of the Commission of 8 July 1993, p. 16, paras. 93-95).
The limited ambit of this finding of "control" must be seen in the light of the
Commission’s characterisation of the applicant’s complaint as essentially
concerning freedom of movement across the buffer-zone (see paragraphs 59
and 61 below). The Court, however, must assess the evidence with a view to
determining the issue whether the continuous denial of access to her
property and the ensuing loss of all control over it is imputable to Turkey.
It is not necessary to determine whether, as the applicant and the
Government of Cyprus have suggested, Turkey actually exercises detailed
control over the policies and actions of the authorities of the "TRNC". It is
obvious from the large number of troops engaged in active duties in
northern Cyprus (see paragraph 16 above) that her army exercises effective
overall control over that part of the island. Such control, according to the
relevant test and in the circumstances of the case, entails her responsibility
for the policies and actions of the "TRNC" (see paragraph 52 above). Those
affected by such policies or actions therefore come within the "jurisdiction"
of Turkey for the purposes of Article 1 of the Convention (art. 1). Her
obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the northern part of Cyprus.
In view of this conclusion the Court need not pronounce itself on the
arguments which have been adduced by those appearing before it
concerning the alleged lawfulness or unlawfulness under international law
of Turkey’s military intervention in the island in 1974 since, as noted above,
the establishment of State responsibility under the Convention does not

require such an enquiry (see paragraph 52 above). It suffices to recall in this
context its finding that the international community considers that the
Republic of Cyprus is the sole legitimate Government of the island and has
consistently refused to accept the legitimacy of the "TRNC" as a State
within the meaning of international law (see paragraph 44 above).
57. It follows from the above considerations that the continuous denial
of the applicant’s access to her property in northern Cyprus and the ensuing
loss of all control over the property is a matter which falls within Turkey’s
"jurisdiction" within the meaning of Article 1 (art. 1) and is thus imputable
to Turkey.
B. Interference with property rights
58. The applicant and the Cypriot Government emphasised that,

contrary to the Commission’s interpretation, the complaint is not limited to
access to property but is much wider and concerns a factual situation:
because of the continuous denial of access the applicant had effectively lost
all control over, as well as all possibilities to use, to sell, to bequeath, to
mortgage, to develop and to enjoy her land. This situation, they contended,
could be assimilated to a de facto expropriation within the meaning of the
Court’s case-law. They denied that there had been a formal expropriation,
but added that if and in so far as there had been attempts at formal
expropriation the relevant enactments should be disregarded as being
incompatible with international law.
59. For the Turkish Government and the Commission the case only
concerns access to property, and the right to the peaceful enjoyment of
possessions does not include as a corollary a right to freedom of movement.
The Turkish Government further submitted that if the applicant was held
to have absolute freedom of access to her property, irrespective of the de
facto political situation on the island, this would undermine the
intercommunal talks, which were the only appropriate way of resolving this
problem.
60. The Court first observes from the Commission’s decision on
admissibility that the applicant’s complaint under Article 1 of Protocol No.
1 (P1-1) was not limited to the question of physical access to her property.
Her complaint, as set out in the application form to the Commission, was
that Turkey, by refusing her access to property "has gradually, over the last
sixteen years, affected the right of the applicant as a property owner and in
particular her right to a peaceful enjoyment of her possessions, thus
constituting a continuing violation of Article 1 (P1-1)" (see the report of the
Commission of 8 July 1993, p. 21, and the decision of admissibility in
Chrysostomos, Papachrysostomou and Loizidou v. Turkey, DR 68, p. 228).
Moreover it is this complaint as formulated above that is addressed by the
applicants and the Turkish Government in both their written and oral
submissions.
61. Seen in the above light, the Court cannot accept the characterisation
of the applicant’s complaint as being limited to the right to freedom of
movement. Article 1 of Protocol No. 1 (P1-1) is thus applicable.
62. With respect to the question whether Article 1 (P1-1) is violated, the
Court first recalls its finding that the applicant, for purposes of this Article
(P1-1), must be regarded to have remained the legal owner of the land (see
paragraphs 39-47 above).
63. However, as a consequence of the fact that the applicant has been
refused access to the land since 1974, she has effectively lost all control
over, as well as all possibilities to use and enjoy, her property. The
continuous denial of access must therefore be regarded as an interference
with her rights under Article 1 of Protocol No. 1 (P1-1). Such an
interference cannot, in the exceptional circumstances of the present case to
which the applicant and the Cypriot Government have referred (see
paragraphs 49-50 above), be regarded as either a deprivation of property or
a control of use within the meaning of the first and second paragraphs of
Article 1 of Protocol No. 1 (P1-1-1, P1-1-2). However, it clearly falls within
the meaning of the first sentence of that provision (P1-1) as an interference
with the peaceful enjoyment of possessions. In this respect the Court
observes that hindrance can amount to a violation of the Convention just
like a legal impediment (see, mutatis mutandis, the Airey v. Ireland
judgment of 9 October 1979, Series A no. 32, p. 14, para. 25).
64. Apart from a passing reference to the doctrine of necessity as a
justification for the acts of the "TRNC" and to the fact that property rights
were the subject of intercommunal talks, the Turkish Government have not
sought to make submissions justifying the above interference with the
applicant’s property rights which is imputable to Turkey.
It has not, however, been explained how the need to rehouse displaced
Turkish Cypriot refugees in the years following the Turkish intervention in
the island in 1974 could justify the complete negation of the applicant’s
property rights in the form of a total and continuous denial of access and a
purported expropriation without compensation.
Nor can the fact that property rights were the subject of intercommunal
talks involving both communities in Cyprus provide a justification for this
situation under the Convention.
In such circumstances, the Court concludes that there has been and
continues to be a breach of Article 1 of Protocol No. 1 (P1-1).
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

(Art. 8)
65. The applicant also alleged an unjustified interference with the right
to respect for her home in violation of Article 8 of the Convention (art. 8),
paragraph 1 of which (art. 8-1) provides, inter alia, that:
"Everyone has the right to respect for ... his home ..."
In this respect she underlined that she had grown up in Kyrenia where
her family had lived for generations and where her father and grandfather
had been respected medical practitioners. She conceded that after her
marriage in 1972 she had moved to Nicosia and had made her home there
ever since. However, she had planned to live in one of the flats whose
construction had begun at the time of the Turkish occupation of northern
Cyprus in 1974 (see paragraph 12 above). As a result, it had been
impossible to complete the work and subsequent events had prevented her
from returning to live in what she considered as her home town.
66. The Court observes that the applicant did not have her home on the
land in question. In its opinion it would strain the meaning of the notion
"home" in Article 8 (art. 8) to extend it to comprise property on which it is
planned to build a house for residential purposes. Nor can that term be
interpreted to cover an area of a State where one has grown up and where
the family has its roots but where one no longer lives.
Accordingly, there has been no interference with the applicant’s rights
under Article 8 (art. 8).
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (Art. 50)
67. Article 50 of the Convention (art. 50) provides as follows:

"If the Court finds that a decision or a measure taken by a legal authority or any
other authority of a High Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of this decision or
measure, the decision of the Court shall, if necessary, afford just satisfaction to the
injured party."
68. In her memorial the applicant outlined the following claims under
this head: (a) compensation for pecuniary damage - loss of income from the
land since January 1987: 531,900 Cyprus pounds; (b) compensation for
non-pecuniary damage - punitive damages to the same amount as claimed
for pecuniary damage; (c) to be allowed to exercise her rights under Article
1 of Protocol No. 1 (P1-1) freely in the future; and (d) a non-specified
amount in respect of costs and expenses.
In their memorial the Turkish Government have not commented on the

issues thus raised. Neither have these issues been discussed by those
appearing before the Court at its hearing on the merits.
69. Under these circumstances the Court, taking into account the
exceptional nature of the case, considers that the question of the application
of Article 50 (art. 50) is not ready for decision. The question must
accordingly be reserved and the further procedure fixed with due regard to
the possibility of agreement being reached between the Turkish Government
and the applicant.
FOR THESE REASONS, THE COURT

1. Dismisses by eleven votes to six the preliminary objection ratione
temporis;
2. Holds by eleven votes to six that the denial of access to the applicant’s
property and consequent loss of control thereof is imputable to Turkey;
3. Holds by eleven votes to six that there has been a breach of Article 1 of
Protocol No. 1 (P1-1);
4. Holds unanimously that there has been no violation of Article 8 of the

Convention (art. 8);
5. Holds unanimously that the question of the application of Article 50 of

the Convention (art. 50) is not ready for decision; and consequently,
(a) reserves the said question;
(b) invites the Turkish Government and the applicant to submit, within
the forthcoming six months, their written observations on the matter and,
in particular, to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 18 December 1996.
ROLV RYSSDAL
President
HERBERT PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention (art. 51-2) and

Rule 53 para. 2 of Rules of Court A, the following separate opinions are
annexed to this judgment:
- concurring opinion of Mr Wildhaber, joined by Mr Ryssdal;
- dissenting opinion of Mr Bernhardt, joined by Mr Lopes Rocha;
- dissenting opinion of Mr Baka;
- dissenting opinion of Mr Jambrek;
- dissenting opinion of Mr Pettiti;
- dissenting opinion of Mr Gölcüklü.
R.R.
H.P.
CONCURRING OPINION OF JUDGE WILDHABER, JOINED BY JUDGE RYSSDAL
CONCURRING OPINION OF JUDGE WILDHABER, JOINED

BY JUDGE RYSSDAL
There was no need for the Court to give an express answer to Turkey’s
claim that the "TRNC" was established by the Turkish Cypriot people in
pursuance of their right to self-determination (see paragraph 35 of the
judgment). That claim must indeed fail.
Until recently in international practice the right to self-determination was
in practical terms identical to, and indeed restricted to, a right to
decolonisation. In recent years a consensus has seemed to emerge that
peoples may also exercise a right to self-determination if their human rights
are consistently and flagrantly violated or if they are without representation
at all or are massively under-represented in an undemocratic and
discriminatory way. If this description is correct, then the right to self-
determination is a tool which may be used to re-establish international
standards of human rights and democracy.
In the instant case, the Court is faced with an applicant who alleges
violations of certain Convention guarantees; with the respondent Turkish
Government which alleges a right to self-determination of the "TRNC" in
order to disclaim responsibility for a violation of certain Convention
guarantees; and with an international community which refuses to recognise
the entity which claims a right to self-determination (the "TRNC").
When the international community in 1983 refused to recognise the
"TRNC" as a new State under international law (see paragraph 42 of the
judgment), it by the same token implicitly rejected the claim of the "TRNC"
to self-determination in the form of secession. At that time the close
connection between the right to self-determination and the observance of
international standards with respect to human rights and democracy was not
established to the same extent as today. The "TRNC" is constituted by what
was originally a minority group in the whole of Cyprus (i.e. the "Turkish
Cypriots") but what is now the majority in the northern part of Cyprus. This
group invokes a right to self-determination which under the 1985
Constitution is denied by them to the "Greek Cypriots" living in the territory
of the "TRNC". This leads me to the conclusion that where the modern right
to self-determination does not strengthen or re-establish the human rights
and democracy of all persons and groups involved, as it does not in the
instant case, it cannot be invoked to overcome the international
community’s policy of non-recognition of the "TRNC".
DISSENTING OPINION OF JUDGE BERNHARDT JOINED BY JUDGE LOPES ROCHA
DISSENTING OPINION OF JUDGE BERNHARDT JOINED

BY JUDGE LOPES ROCHA
I have voted for accepting the preliminary objection ratione temporis and
against the finding of a violation of Article 1 of Protocol No. 1 (P1-1).
Before I discuss the two main aspects of the case, some general remarks are,
in my view, indispensable.
1. A unique feature of the present case is that it is impossible to separate
the situation of the individual victim from a complex historical development
and a no less complex current situation. The Court’s judgment concerns in
reality not only Mrs Loizidou, but thousands or hundreds of thousands of
Greek Cypriots who have (or had) property in northern Cyprus. It might
also affect Turkish Cypriots who are prevented from visiting and occupying
their property in southern Cyprus. It might even concern citizens of third
countries who are prevented from travelling to places where they have
property and houses. The factual border between the two parts of Cyprus
has the deplorable and inhuman consequence that a great number of
individuals are separated from their property and their former homes.
I have, with the majority of the judges in the Grand Chamber, no doubt
that Turkey bears a considerable responsibility for the present situation. But
there are also other actors and factors involved in the drama. The coup
d’état of 1974 was the starting-point. It was followed by the Turkish
invasion, the population transfer from north to south and south to north on
the island, and other events. The proclamation of the so-called "Turkish
Republic of Northern Cyprus", not recognised as a State by the international
community, is one of those events. The result of the different influences and
events is the "iron wall" which has existed now for more than two decades
and which is supervised by United Nations forces. All negotiations or
proposals for negotiations aimed at the unification of Cyprus have failed up
to now. Who is responsible for this failure? Only one side? Is it possible to
give a clear answer to this and several other questions and to draw a clear
legal conclusion?
The case of Mrs Loizidou is not the consequence of an individual act of
Turkish troops directed against her property or her freedom of movement,
but it is the consequence of the establishment of the borderline in 1974 and
its closure up to the present day.
2. Turkey has accepted the jurisdiction of the Court only in respect of
the facts which occurred subsequent to 22 January 1990. Such a limitation
excludes an inquiry into and final legal qualification of previous events,
even if these were incompatible with a State’s obligation under the
Convention.
The Convention organs have accepted the notion of "continuing
violations", violations which started prior to the critical date and which still
continue. I entirely agree with this concept, but its field of application and
DISSENTING OPINION OF JUDGE BERNHARDT JOINED BY JUDGE LOPES ROCHA
its limits must be appreciated. If a person is kept in prison before and after
the critical date, if concrete property is illegally occupied before and after
that date (as in the case of Papamichalopoulos and Others v. Greece,
judgment of 24 June 1993, Series A no. 260-B), there can be no doubt that it
falls within the Court’s jurisdiction to examine facts and circumstances
which have occurred after the date in question. The essential fact in such
cases is the actual behaviour of State organs which is incompatible with the
commitments under the European Convention on Human Rights.
The factual and legal situation is in my view different when certain
historical events have given rise to a situation such as the closing of a border
with automatic consequences in a great number of cases. In the present case,
the decisive events date back to the year 1974. Since that time,
Mrs Loizidou has not been able to visit her property in northern Cyprus.
This situation continued to exist before and after the adoption of the
Constitution of the so-called "Turkish Republic of Northern Cyprus" of
1985 and the expropriation proclaimed therein. I share the doubts of the
Court (see paragraphs 45-47 of the judgment) concerning the validity of the
expropriation; however this is not decisive. Turkey has recognised the
jurisdiction of the Court only "in respect of facts ... which have occurred
subsequent to the date of deposit of the present declaration"; the closing of
the borderline in 1974 is in my view the material fact and the ensuing
situation up to the present time should not be brought under the notion of
"continuing violation".
Therefore, the preliminary objection ratione temporis raised by Turkey is
in my view legally well-founded.
3. Even if I had been able to follow the majority of the Court in this
respect, I would still be unable to find a violation of Article 1 of Protocol
No. 1 (P1-1). As explained above, the presence of Turkish troops in
northern Cyprus is one element in an extremely complex development and
situation. As has been explained and decided in the Loizidou judgment on
the preliminary objections (23 March 1995, Series A no. 310), Turkey can
be held responsible for concrete acts done in northern Cyprus by Turkish
troops or officials. But in the present case, we are confronted with a special
situation: it is the existence of the factual border, protected by forces under
United Nations command, which makes it impossible for Greek Cypriots to
visit and to stay in their homes and on their property in the northern part of
the island. The presence of Turkish troops and Turkey’s support of the
"TRNC" are important factors in the existing situation; but I feel unable to
base a judgment of the European Court of Human Rights exclusively on the
assumption that the Turkish presence is illegal and that Turkey is therefore
responsible for more or less everything that happens in northern Cyprus.
DISSENTING OPINION OF JUDGE BAKA

In the present case it is extremely difficult to determine whether, on the
one hand, the violation complained of by the applicant has been a
continuous one or whether, on the other hand, there has been an
instantaneous expropriation of the applicant’s property with continuing
effects. I agree with the majority that the answer to this question has direct
consequences for deciding the Government’s preliminary objection ratione
temporis.
On the basis of the facts of the case, I have come to the conclusion that
Mrs Loizidou lost overall control of her property as a direct consequence of
the Turkish military action in 1974. Since that time she has not been able to
possess, to use and enjoy her property in any way nor even have access to it.
It can thus be said that there has been a form of de facto expropriation.
However, in the period between 1974 and 1985 the applicant still held
legal title to her land. She purportedly lost ownership by the formal act of
expropriation pursuant to Article 159 (1) of the "TRNC" Constitution of 7
May 1985 which sought to regularise the existing de facto situation.
Although I share the view of the Court concerning the non-recognition of
the "TRNC" by the international legal community and the legal
consequences flowing from this, I am also of the opinion that its legal
provisions "have been invoked by the Turkish Government". In the instant
case the legal situation in respect of property issues is very close to those of
the former communist States in central and eastern Europe. In those
countries - which, it must be borne in mind, were internationally recognised
States - there had been a long process of expropriation of property by
nationalisation legislation and other legal means. These actions, which led
to enormous property rearrangements in the countries concerned, cannot
always be justified by simply referring to the fact that those States had been
recognised by the international community at the relevant time.
On the other hand, Article 159 of the "TRNC" Constitution and certain
other legal provisions cannot be completely set to one side as devoid of all
effect merely on the basis of the international non-recognition of the entity
in northern Cyprus. It is rightly said in paragraph 45 of the judgment that
international law recognises the legitimacy of certain arrangements and
transactions in such a situation the "effects of which can be ignored only to
the detriment of the inhabitants of the territory". The full implications of this
view, however, - as the recent and very different legal arrangements in the
former communist States as regards property matters clearly show - are still
very much open to interpretation. Nevertheless the principle has some
application in the field of real property in a situation such as that pertaining
in the "TRNC" where it can be said that the interests of the community
required, if not necessitated, some form of regularisation. In my view it is
open to the Court to have regard to this principle in the context of the
dispute as to whether there is a continuing situation without endorsing or

recognising the legitimacy of the totality of the property rearrangements
effected by the "TRNC"in 1985.
Bearing in mind the de facto nature of the expropriation of the
applicant’s property up to 1985 as well as the relevant provisions of the
1985 Constitution affecting that property, I am unable to share the Court’s
opinion that the applicant’s complaint concerns a continuing situation. Since
the Court’s jurisdiction only concerns matters occurring subsequent to 22
January 1990, the Government’s objection ratione temporis must be
considered to be well-founded.
DISSENTING OPINION OF JUDGE JAMBREK
I.
1. In its decision on the preliminary objections in the present case the
Court joined to the merits the objection ratione temporis. It was of the
opinion that the correct interpretation and application of the relevant
restrictions raised difficult legal and factual questions which were closely
connected to the merits of the case (paragraphs 103 and 104 of the judgment
of 23 March 1995).
It follows that the Court had first to examine the applicant’s allegations
of a continuing violation of her property rights subsequent to 22 January
1990. That examination entailed an assessment as to whether the applicant
could still be regarded as the legal owner of the land, which in turn
depended upon a prior clarification of the manner in which the loss of her
ownership occurred - or did not occur - before that date. In particular, did it
occur by way of an instantaneous act, and if so, by which act, or did she lose
her property as a result of a longer process, ending in an irreversible
expropriation, possibly by virtue of Article 159 of the "TRNC" Constitution
of 7 May 1985?
2. I was unable to subscribe to the finding of the majority of my
colleagues that Mrs Loizidou cannot be deemed to have lost title to her
property, and that she must therefore still be regarded as the legal owner of
the land. On the other hand, after considering facts advanced by the
applicant and by the respondent Government, and those found by the Court,
I also remained unconvinced of the opposite view, namely, that she in fact
lost title to her property. Consequently, and in doubt, I was unable to
dismiss the preliminary objection ratione temporis.
3. For similar reasons I also remained in doubt as to whether the denial
of access to the applicant’s property resulted in her loss of control,
amounting to a breach of Article 1 of Protocol No. 1 (P1-1), which occurred
due to the interference with the peaceful enjoyment of her possessions.
Consequently I also dissented on the issue of the imputability of the
interference to Turkey, and on whether there has been a violation of
Article 1 of Protocol No. 1 (P1-1) (points 2 and 3 of this judgment’s
operative provisions).
4. In the present case an interesting interplay took place between casting
a vote on the preliminary objection, and then on the merits. It is worth
mentioning it as an obiter dictum to my opinion.
In the memorials and at the hearing we were witness to the exchanges
about the "proper" calculation of the votes of the members of the
Commission at the admissibility and at the final stages. It appeared as
obvious that an individual member of the Commission might indeed opt for
any one of the following three choices: (a) to hold that there was no breach
of the Convention because of the prior acceptance of the validity of the

preliminary objection without going into the merits; (b) to hold that there
was no breach after firstly accepting the preliminary objection, and then
going into the merits, or (c) to hold that there was a breach after firstly
accepting the preliminary objection, and then going into the merits.
In retrospect, the majority of eight members of the Commission who
voted for "non-violation" of Article 1 of Protocol No.1 (P1-1) was
reinterpreted as being composed of three members who found no violation
after going into the merits, and five members who voted for non-
admissibility of the case, and had either (a) not expressed a valid opinion on
the issue of violation at the merits stage (the Cyprus Government’s
position), or (b) had expressed a valid opinion on this (this seems to be
President Trechsel’s view, although not stated in exactly such terms).
All in all, two kinds of principled reasoning about the issue seem
possible at first sight:
(a) The two votes, at the admissibility/preliminary objections stage and
at the merits stage, are independent of each other. The decision about the
jurisdiction appears autonomous from a procedural point of view. But it
may not be autonomous in relation to the merits considering the facts, the
law, or the philosophical views of a judge. For example, a judge may adhere
to the doctrine of judicial restraint, and therefore vote conservatively in
favour of the preliminary objection, while the merits of the case may on the
other side be of quite another concern for him or for her.
Moreover, the "Scandinavian doctrine" of minority respect for majority
decision in the follow-up cases as applied to the present issue would
recommend that a judge who was overruled on the preliminary objection
should recognise its authority immediately. Because he feels, or actually is
bound by the decision on Court’s jurisdiction, he should go into the merits
all the way - by expressing views and by casting his vote.
(b) The second kind of reasoning would advocate interdependence of
the two votes, at the preliminary objections and at the merits stages. If the
judge takes the view that a preliminary objection is well-founded, he has to
vote for non-violation, given that in his view the Court is not competent to
deal with the issue and should therefore never decide on the merits. If the
dissenting judge’s view were to prevail, the Court would not be seized, the
applicant’s claim would not be considered on its merits, and the violation
would consequently not be found.
The present case departs from the two options discussed in the sense that
the decision on the preliminary objection ratione temporis depended upon a
prior examination of certain aspects of the merits. Therefore, the choice
between the two options is not exhaustive of all possibilities. As for myself,
I came to the conclusion that the merits of the case fall outside the
jurisdiction of the Court ratione temporis only after a preliminary
examination of those facts found by the Court which related to the issue of
the title and control of the property.
My subsequent dissent from the second and the third points of the
operative provisions of the judgment was effected cumulatively by the
reasoning under (b) above, by my preliminary and partial understanding of
the merits of the case, and by some further considerations which I set out
below.
II.
5. The alleged original ("instantaneous") breach is in my view veiled in
the factual and legal uncertainties of events which occurred as long ago as
1974 and even before. It also seems beyond this Court’s abilities and
competence to assess with the required certainty whether Turkey’s
interference was (in)consistent with international agreements, and whether
or not it was (in)consistent with general principles of international law.
I am indebted to my colleague Judge Wildhaber for having reminded me
also of the following ideas. The United Nations and other international
policies of non-recognition of the "TRNC" are valid on an inter-State level.
As a result, the "TRNC" Government cannot create legislation or bring
about changes with legal effect in international law. However, it would be
going too far to say that no purportedly legal acts of the "TRNC"
administration are valid. For example, a marriage conducted by a "TRNC"
official, and registered in the "TRNC", would have legal effect outside that
"jurisdiction". Similarly, a transfer of property between private individuals
in northern Cyprus, registered by an official of the "TRNC", would have
legal effect elsewhere in the world.
Similar situations have occurred in other countries in the past. For
example, in the settlement between Czechoslovakia and Germany following
the Second World War, it was decided that the Munich Agreement was null
and void, but that land transactions between private individuals were valid.
Furthermore, the events in northern Cyprus in 1974 would not be
sufficient on their own to establish that Mrs Loizidou had lost her property.
For example, if the prior status quo had been re-established in 1975 or 1976,
she would not have lost her property. But the prior status quo has not yet
been restored. Although it may be seen that Mrs Loizidou did not lose her
property by an instantaneous act in 1974, it may nonetheless be disputed
that no transfer of ownership was effected.
The Court’s earlier case-law has always dealt in this respect with
concrete situations. For example, in the Papamichalopoulos and Others v.
Greece judgment (of 24 June 1993) the case concerned a refusal by the
authorities to execute a national court decision. That is not the case here,
where the ownership of Mrs Loizidou was allegedly altered by the events of
1974, or even as a result of the follow-up "process of the ‘taking of the
property’".
I must therefore suppose that after a certain time events in the "TRNC"
may have led to a transfer of ownership - in which case there is no violation
continuing to the present day: the relevant acts in northern Cyprus were
possibly completed by the time of the Turkish declaration recognising this
Court’s jurisdiction.
The doctrine of "continuing violation" implies a beginning, i.e., a critical
event constituting the original breach, and its continuation. In the case of
Mrs Loizidou the Court in my view failed to ascertain both ingredients to
this concept in an unequivocal manner. This line of reasoning thus led me,
inter alia, to the conclusion that the objection ratione temporis applies.
6. Moreover, the factual situation established in 1974 has persisted ever
since and it is still uncertain which side in the conflict, or even more likely,
what kind of negotiated compromise solution will become "ultimately
successful". While it is true that simple longevity of control must not be
equated with "ultimate success", it is also far from established whether the
"TRNC" de facto Government will survive or not, and if it will, in what
form - as a federal or confederal unit, an independent state, or in some other
form. In any case, the validity of its acts concerning the applicant must be
considered to depend upon its ultimate success. The final outcome of the
conflict - in the form of a post facto international or bilateral settlement -
will have to resolve in one way or another the issue of recognition of the
acts of the "TRNC" from the commencement of its existence, and/or of
reversion to the original status prior to such acts.
7. A national and an international judge alike, before making a decision
to act in an activist or a restrained way, will as a rule examine whether the
case is focused in a monocentric way and ripe for decision, and whether it is
not overly moot and political.
Given that efforts are under way to arrive at a peaceful settlement of the
Cyprus problem within UN, CE and other international bodies, a judgment
of the European Court may appear as prejudicial. The respective "political
nature" of the issue at hand does not refer, however, to the possible political
consequences of the final judgment; all judgments, domestic and
international, have at least some general social and political effects.
The "political nature" of the present case is in my view rather related to
the place of the courts in general, and of the Strasbourg mechanism in
particular, in the scheme of the division and separation of powers. There,
the courts have a different role to play, than, e.g., the legislative and
executive bodies. Courts are adjudicating in individual and in concrete cases
according to prescribed legal standards. They are ill-equipped to deal with
large-scale and complex issues which as a rule call for normative action and
legal reform.
The same kinds of dilemmas face an international tribunal, which should,
in my view, proceed in a rather restrained, that is, conservative way in
matters which clearly transcend adjudication of an individual case,
especially when they are part and parcel of a given structure of inter-
community relationships. As to the present case, a "violation decision" on
Article 1 of Protocol No.1 (P1-1) might invite another one hundred
thousand or so similar cases in which applications could be filed with
legitimate expectations that Commission’s reports or the Court’s judgments
will follow the present precedent. In that case, the Court has in fact taken a
broad decision about a large-scale issue in the realm of public international
law.
8. This case may furthermore affect the role of the Court in another
perspective, on which I also had the privilege to exchange and share ideas
with my colleague Judge Wildhaber. It may affect the way in which the
Court might handle future cases involving new member States such as
Croatia, Bosnia and Hercegovina or Russia. The Court might have to look at
what happened in the Croat region of Krajina, in the Republika Srpska, in
other parts of Bosnia and Hercegovina, or in Chechnya. There, alleged
violations of Convention-protected human rights and fundamental freedoms
would be counted in millions, not "only" in hundreds and thousands of
possible cases.
I have great respect for the principled view that the Court’s only task is
to see to it that fundamental rights of individuals are respected, irrespective
of their numbers. On the other hand, I see much reason to consider seriously
an equally legitimate issue of this Court’s effectiveness in resolving human
rights problems. This problem is even more difficult in respect of individual
cases, such as the present one, which are inextricably linked to, and also
depend upon the solution of a large-scale inter-communal ethnic and/or
political conflict.
9. In the final analysis, the totality of the above considerations led me to
take a restrained judicial approach in the present case, and to accept validity
of the exceptio ratione temporis.
DISSENTING OPINION OF JUDGE PETTITI

(Translation)
I voted with the minority against finding a violation of Article 1 of

Protocol No. 1 (P1-1) for a number of reasons. In the judgment on the
preliminary objections I had already expressed my views as follows:
"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." (individual dissenting opinion, Series A no. 310, pp. 43-44)
"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." (joint dissenting opinion of Judge Gölcüklü and myself, loc.
cit., p. 35)
That is why I was in favour of upholding the objection ratione temporis
and of distinguishing between ratione loci and ratione personae.
Neither the second deliberations nor the memorials produced supplied
the detailed information needed for a thorough assessment of the facts. Nor
did the parties’ arguments concerning Protocol No. 1 (P1) shed any light on
the problem of attributing responsibility for any interference with the use of
property there may have been, although free access to the property
depended on liberty of movement from one zone to the other.
The majority held that there had been a violation of Article 1 of Protocol
No. 1 (P1-1) mainly because of the refusal of access since 1974, which led
to the complete loss of control over the property, a matter covered by the
first sentence of that provision (P1-1). They considered that the interference
was not justified and criticised the Turkish Government for not explaining
how the need to rehouse the Turkish Cypriot refugees displaced after 1974
could justify the measure taken against Mrs Loizidou. Indeed, the Court
went on to say that it could not accept such a justification. In any case, I
consider that consideration to be of secondary importance.
The need concerned seems obvious, and if events had made the
rehousing operation inevitable, that could justify the interference. The facts
of the matter had to be looked into. The Loizidou case as a whole could not
be analysed as if it concerned a de facto expropriation under ordinary law,
without compensation. The movement of displaced persons from one zone
to another, an exodus which affected both communities, was the
consequence of international events for which responsibility cannot be
ascribed on the basis of the facts of the Loizidou case but has to be sought
in the sphere of international relations.
Since 1974, the United Nations not having designated the intervention of
Turkish forces in northern Cyprus as aggression in the international law
sense, various negotiations have been conducted with a view to mediation
by the United Nations, the Council of Europe and the European Union.
Moreover, the Court did not examine the question whether that intervention
was lawful (see paragraph 56 of the judgment). The decision to station
international forces on the line separating the two communities made the
free movement of persons between the two zones impossible, and
responsibility for that does not lie with the Turkish Government alone.
The Court’s reference to the international community’s views about the
Republic of Cyprus and the "TRNC" (see paragraph 42 of the judgment) is
not explained. But is it possible in 1996 to represent the views of this
"international community" on the question as uncontested, given that the
most recent resolutions of the United Nations General Assembly and
Security Council go back several years and the Court had no knowledge of
the missions of the international mediators? For the Court it would appear
that only Turkey is "accountable" for the consequences of the 1974 conflict!
In my opinion, a diplomatic situation of such complexity required a lengthy
and thorough investigation on the spot, conducted by a delegation of the
Commission, of the role of the international forces and the administration of
justice, before the Court determined how responsibility, in the form of the
jurisdiction referred to in Article 1 of the Convention (art. 1), should be
attributed.
The problem of the status and responsibilities of the "TRNC" should

have been examined more fully. It is true that the United Nations General
Assembly has not admitted the "TRNC" as a member, but the lack of such
recognition is no obstacle to the attribution of national and international
powers (see paragraph 51 of the judgment). The case of Taiwan is
comparable.
Moreover, the Court accepted the validity of measures adopted by the
"TRNC" authorities in the fields of civil law, private law and the
registration of births, deaths and marriages, without specifying what reasons
for distinguishing between these branches of law and the law governing the
use of property justified its decision. On the merits of Mrs Loizidou’s claim,
there are a number of uncertainties which have not been elucidated by the
files. Since 1974 she does not seem to have taken any steps to give tangible
expression to her intention of going to live in northern Cyprus or brought
proceedings to preserve her title between 1974 and 1985 at least in the
courts of the Republic of Cyprus, although she maintained that the latter had
sole legitimate jurisdiction and sovereignty over the whole island. She did
not apply to the Commission until 1989 and she has not produced any
evidence that she applied to the UN forces for authorisation to cross the line
and travel in the area beyond the border zone. The very basis of her civil
action remains to be specified, her application being mainly concerned with
access to her property. Loss of the use of the property is essentially due to
the creation of the border, not to any one act on the part of a local authority.
The Court takes the view that it acquired jurisdiction on 22 January 1990
(see paragraph 32 of the judgment). Quite apart from the problem of
admissibility raised by the wording of Turkey’s declaration under Article 46
of the Convention (art. 46), it is not obvious that there was a continuing
violation of Mrs Loizidou’s property rights. On the contrary, it could be
considered that there was an instantaneous violation in 1974, at the time of
the coup d’état, even before a de facto expropriation in 1985 by the local
authorities and during a period of disorder on which the Commission has
not been able to throw any light, making it impossible to dissociate Mrs
Loizidou’s personal situation from the historical situation which also
affected the Turkish Cypriot community. The term "continuing violation" is
not appropriate, as the Commission observed in paragraphs 97 and 98 of its
report.
It should also be noted that the Commission limited its finding on the
question whether Turkey exercised jurisdiction to the border zone, not the
whole of northern Cyprus (see applications nos. 6780/74, 6950/75 and
8007/77) and that it concluded that the applicants’ arrest, detention and trial
in the above-mentioned cases were not acts imputable to Turkey (see
paragraph 51 of the judgment and paragraph 114 of the Turkish
Government’s memorial). In its report of 8 July 1993 the Commission
refrained from ruling on the status of the "TRNC".
That takes us a long way from the type of situation which the Court
termed a continuing violation in cases such as the Holy Monasteries case.
The scope and limits of the concept of a continuing violation should have
been defined.
Whatever the responsibilities assumed in 1974 at the time of the coup
d’état, or those which arose with the arrival of the Turkish troops in the
same year, however hesitant the international community has been in
attempting to solve the international problems over Cyprus since 1974, at
the time when the "TRNC" was set up or at the time of Turkey’s declaration
to the Council of Europe, those responsibilities being of various origins and
types, the whole problem of the two communities (which are not national
minorities as that term is understood in international law) has more to do
with politics and diplomacy than with European judicial scrutiny based on
the isolated case of Mrs Loizidou and her rights under Protocol No. 1 (P1).
It is noteworthy that since 1990 there has been no multiple inter-State
application bringing the whole situation in Cyprus before the Court. That is
eloquent evidence that the member States of the Council of Europe have
sought to exercise diplomatic caution in the face of chaotic historical events
which the wisdom of nations may steer in a positive direction.
DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)
I disagree with the majority on all points and in the first place on
rejection of the Turkish Government’s preliminary objection concerning the
Court’s jurisdiction ratione temporis. The present dissenting opinion is
prompted mainly by the fact that this case raises legal and political
difficulties which go well beyond the conceptual framework established by
the Convention and the whole of the Court’s case-law hitherto.
1. Firstly, the present judgment contains serious methodological flaws.
As I pointed out in my dissenting opinion on the preliminary objections in
the same case (judgment of 23 March 1995, Series A no. 310), the central
legal problem in the case of Loizidou v. Turkey is the question of
jurisdiction and responsibility for the purposes of the Convention. Not only
does the judgment not resolve this problem, it boldly ventures into a highly
political area, namely the Court’s definition of the capacity in which Turkey
is present in northern Cyprus and its "assessment" of the legal existence of
the Turkish Republic of Northern Cyprus, both of which are matters that lie
entirely outside its jurisdiction and are dealt with differently by other
bodies. In other words, the Court has built its own database in order to be
able to "rule" on a case that is likely to become the prototype for a whole
series of similar cases which will in all probability be resolved by political
bodies. Hitherto, each time the Strasbourg supervision institutions had to
deal with a case involving application of other international treaties or
agreements, they proceeded with great caution, and such applications never
got past the admissibility stage. It is interesting, for example, that even in
the present case the Commission, in its report of 8 July 1993, prudently
stated with regard to the applicant’s allegation that she had been unlawfully
deprived of her possessions: "The Commission finds that it is not in this
connection required to examine the status of the ‘Turkish Republic of
Northern Cyprus’. It notes that the demonstration on 19 March 1989, in the
course of which the applicant was arrested in northern Cyprus, constituted a
violation of the arrangements concerning the respect of the buffer-zone in
Cyprus ... The provisions under which the applicant was arrested and
detained ... served to protect this very area. This cannot be considered as
arbitrary" (see paragraph 82 of the report). Likewise, in its report in the case
of Chrysostomos and Papachrysostomou v. Turkey, the Commission stated:
"... the Commission does not feel called upon to resolve the dispute between
the parties as to the status of the area in which the applicants’ arrest took
place. It refers in this respect to paragraph 11 sub-paragraph (b) of the report
of the Secretary-General of the United Nations ... and to paragraph 6 of the
Unmanning Agreement of 1989 ..." (see paragraph 153 of the report).
2. As regards jurisdiction too, the Court’s present judgment goes

beyond the limits of its previous case-law on the question.
Wherever jurisdiction is not derived from the territorial ambit of a
Contracting State’s legal system, the fact of its existence must be expressly
established, since in such cases it is not legally correct to speak of
application of the Convention ratione loci. On that point I refer to my
dissenting opinion in the above-mentioned Loizidou judgment and the
Commission’s decision of 12 March 1990 on the admissibility of
application no. 16137/90, which concerned application of the Convention to
Hong Kong (Decisions and Reports (DR) 65, p. 330 et seq.).
In its decision of 26 May 1975 concerning the case of Cyprus v. Turkey
(nos. 6780/74 and 6950/75, DR 2, p. 136) the Commission had already
taken the same view. That decision clearly shows that it is not a question of
the Convention’s application ratione loci, but of its application ratione
personae.
That approach is clarified still further in other decisions in which the
Commission has expressed the opinion that the acts of a State’s officials,
including diplomatic or consular agents, "bring other persons or property
within the jurisdiction of that State to the extent that they exercise authority
over such persons or property" (application no. 17392/90, DR 73, p. 193,
and application no. 7547/76, DR 12, p. 73).
In its Drozd and Janousek v. France and Spain judgment the Court too,
after noting that the Principality of Andorra was not "an area ... common to
the French Republic and the Kingdom of Spain, nor ... a Franco-Spanish
condominium", concluded that there was no jurisdiction ratione loci. It was
only after excluding that category of jurisdiction that the Court turned to the
question whether there was jurisdiction ratione personae, and what is more
on the basis of the case-law cited above (judgment of 26 June 1992, Series
A no. 240, p. 29, para. 91).
In its report in the cases of Chrysostomos and Papachrysostomou the
Commission observed: "The Commission, having regard to the
developments described above and finding no indication of direct
involvement of Turkish authorities in the applicants’ detention, and the
proceedings against them, after their arrest on 19 July 1989, sees no basis
under the Convention for imputing these acts to Turkey" (see paragraph 170
of the report).
The present judgment breaks with the previous case-law since in dealing
with the question whether there was jurisdiction ratione personae it applies
the criteria for determining whether there was jurisdiction ratione loci,
although the conditions for doing so have not been met. Thus, for the first
time, the Court is passing judgment on an international law situation which
lies outside the ambit of the powers conferred on it under the Convention’s
supervision machinery. In this judgment the Court projects Turkey’s legal
system on to northern Cyprus without concerning itself with the political

and legal consequences of such an approach.
3. I would also emphasise that not only does northern Cyprus not come
under Turkey’s jurisdiction, but there is a (politically and socially)
sovereign authority there which is independent and democratic. It is of little
consequence whether that authority is legally recognised by the
international community. When applying the Convention the actual factual
circumstances are the decisive element. The Commission and the Court
have stated more than once that the concept of "jurisdiction" within the
meaning of Article 1 of the Convention (art. 1) covers both de facto and de
jure jurisdiction. In northern Cyprus there is no "vacuum", whether de jure
or de facto, but a politically organised society, whatever name and
classification one chooses to give it, with its own legal system and its own
State authority. Who today would deny the existence of Taiwan? That is
why the Commission in its report in the Chrysostomos and
Papachrysostomou cases examined the law in force in northern Cyprus as
such, and not Turkish law in order to determine whether the applicants’
detention had been lawful (see paragraphs 148, 149 and 174 of the report).
4. I now come to the heart of the problem. I voted in favour of
upholding the Turkish Government’s preliminary objection ratione temporis
and against finding a violation of Article 1 of Protocol No. 1 (P1-1). As
Judge Bernhardt, the Vice-President of the Court, rightly pointed out in his
dissenting opinion, some general remarks are indispensable before any
discussion of the two main aspects of the case can begin.
I agree entirely with that part of Judge Bernhardt’s opinion where he
states: "A unique feature of the present case is that it is impossible to
separate the situation of the individual victim from a complex historical
development and a no less complex current situation. The Court’s judgment
concerns in reality not only Mrs Loizidou, but thousands or hundreds of
thousands of Greek Cypriots who have (or had) property in northern
Cyprus. It might also affect Turkish Cypriots who are prevented from
visiting and occupying their property in southern Cyprus. It might even
concern citizens of third countries who are prevented from travelling to
places where they have property and houses. The factual border between the
two parts of Cyprus has the ... consequence that a great number of
individuals are separated from their property and their former homes."
The Cypriot conflict between the Turkish and Greek communities is
mainly attributable to the 1974 coup d’état, carried out by Greek Cypriots
with the manifest intention of achieving union with Greece (enosis), which
the Cypriot head of state at the time vigorously criticised before the
international bodies. After this coup d’état Turkey intervened to ensure the
protection of the Republic of Cyprus under the terms of a Treaty of
Guarantee previously concluded between three interested States (Turkey,
the United Kingdom and Greece) which gave these States the right to
intervene separately or jointly when the situation so required, and the

situation did so require ultimately in July 1974, on account of the coup
d’état. In all of the above, incidentally, I make no mention of the bloody
events and incidents which had been going on continually since 1963.
This implementation of a clause in the Treaty of Guarantee changed the
previously existing political situation and durably established the separation
of the two communities which had been in evidence as early as 1963.
I fully agree with Judge Bernhardt that after the 1974 coup d’état there
were a number of actors and factors involved in the Cypriot "drama",
including "the population transfer from north to south and south to north".
He continued: "The result of the different influences and events is the ‘iron
wall’ which has existed now for more than two decades and which is
supervised by United Nations forces. All negotiations or proposals for
negotiations aimed at the unification of Cyprus have failed up to now. Who
is responsible for this failure? Only one side? Is it possible to give a clear
answer to this and several other questions and to draw a clear legal
conclusion? ... The case of Mrs Loizidou is not the consequence of an
individual act of Turkish troops directed against her property or her freedom
of movement, but it is the consequence of the establishment of the
borderline in 1974 and its closure up to the present day."
After the establishment of the buffer-zone under the control of United
Nations forces, movement from north to south and vice versa was
prohibited and there was a population exchange with the common consent
of the Turkish and Cypriot authorities under which eighty thousand Turkish
Cypriots moved from southern to northern Cyprus.
I must emphasise once again that, as already mentioned at the very
beginning of this dissenting opinion, in the present case we are dealing with
a political situation and it is impossible to separate the political aspects of
the case from the legal aspects.
The case has another political dimension for our Court. Its judgment will
certainly have consequences for future cases - whose origins go back to the
Second World War - against new members of the Council of Europe, such
as the countries in central or eastern Europe previously governed by
communist regimes.
Turkey has recognised the Court’s jurisdiction only in respect of events
subsequent to 22 January 1990. That restriction excludes all judicial
consideration of events prior to that date, even if they were incompatible
with the respondent State’s obligations under the Convention.
The Convention institutions have accepted the notion of "continuing
violations", that is violations which began before the critical date and
continued afterwards. However, where this concept is invoked it is vital to
define its scope and its limits. In the case of imprisonment or the illegal
occupation of land before and after the date concerned there is no doubt that
a continuing violation exists and that the period subsequent to the critical
date falls within the Court’s jurisdiction. Like Judge Bernhardt, however, I
consider that the position is different in the present case, where a certain
historical event has led to "a situation such as the closing of a border with
automatic consequences in a great number of cases". If it were otherwise,
the Strasbourg institutions could be confronted with the difficult task of
reconsidering historical events many years after their occurrence and
applying Convention standards retrospectively.
In the Loizidou v. Turkey case it is the existence of a buffer-zone, a kind
of border guarded by UN forces in collaboration with the security forces of
both communities, in accordance with the agreements they have concluded,
which is preventing the Greek Cypriots of southern Cyprus from obtaining
access to their properties in the north and from living there. Its
establishment, which took place before 1990, that is before Turkey
recognised the Court’s jurisdiction, was an instantaneous act which froze a
de facto situation of a political nature. That being the case, we are not
confronted with a "continuing situation" as the majority of the Court
considered. In this case, therefore, there is no question of a continuing
violation nor of any infringement of the applicant’s right of property. That is
also the view taken by the Commission, which noted: "the applicant, who
was arrested after having crossed the buffer-zone in Cyprus in the course of
a demonstration, claims the right freely to move on the island of Cyprus,
irrespective of the buffer-zone and its control, and bases this claim on the
statement that she owns property in the north of Cyprus". The report
continues: "The Commission acknowledges that limitations of the freedom
of movement - whether resulting from a person’s deprivation of liberty or
from the status of a particular area - may indirectly affect other matters,
such as access to property. But this does not mean that a deprivation of
liberty, or restriction of access to a certain area, interferes directly with the
right protected by Article 1 of Protocol No. 1 (P1-1). In other words, the
right to the peaceful enjoyment of one’s possessions does not include, as a
corollary, the right to freedom of movement." The Commission accordingly
concluded that there had been no violation of Article 1 of Protocol No. 1 to
the Convention (P1-1) (see the Commission’s report on the application of
Loizidou v. Turkey, paras. 97, 98 and 101).

001 58007

Uploaded by

Copyright:

Available Formats

001 58007

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

001 58007

Uploaded by

Copyright:

Available Formats

CONSEIL COUNCIL

COUR EUROPÉENNE DES DROITS DE L’HOMME

CASE OF LOIZIDOU v. TURKEY

(Application no. 15318/89)

In the case of Loizidou v. Turkey1,

application (no. 15318/89) against the Republic of Turkey ("the Turkish

I. PARTICULAR CIRCUMSTANCES OF THE CASE

11. The applicant, a Cypriot national, grew up in Kyrenia in northern

A. Turkish military presence in Northern Cyprus

B. Article 159 (1) (b) of the "TRNC" Constitution

C. The international response to the establishment of the "TRNC"

19. On 18 November 1983, in response to the proclamation of the

1. Deplores the declaration of the Turkish Cypriot authorities of the purported

6. Calls upon all States to respect the sovereignty, independence, territorial

2. Condemns all secessionist actions, including the purported exchange of

4. Calls upon all States to respect the sovereignty, independence, territorial

D. The Turkish declaration of 22 January 1990 under Article 46 of

24. On 22 January 1990, the Turkish Minister for Foreign Affairs

The Government of the Republic of Turkey acting in accordance with Article 46

This Declaration is made on condition of reciprocity, including reciprocity of

PROCEEDINGS BEFORE THE COMMISSION

FINAL SUBMISSIONS TO THE COURT

1. the Court has jurisdiction ratione temporis to deal with the

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

A. The wording of the Article 46 declaration (art. 46)

33. In their memorial on the merits, the Cypriot Government submitted

B. Further arguments of those appearing before the Court

Constitution was accepted by a referendum. Following a process of political

C. The Court’s assessment

competence of Convention organs (see, inter alia, the Papamichalopoulos

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

A. The imputability issue

is lawful, as in the case of a protected State or other dependency. A State

the above-mentioned preliminary objections judgment, p. 24, para. 63).

the establishment of State responsibility under the Convention does not

B. Interference with property rights

58. The applicant and the Cypriot Government emphasised that,

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (Art. 50)

67. Article 50 of the Convention (art. 50) provides as follows:

In their memorial the Turkish Government have not commented on the

FOR THESE REASONS, THE COURT

4. Holds unanimously that there has been no violation of Article 8 of the

5. Holds unanimously that the question of the application of Article 50 of

Done in English and in French, and delivered at a public hearing in the

In accordance with Article 51 para. 2 of the Convention (art. 51-2) and

- concurring opinion of Mr Wildhaber, joined by Mr Ryssdal;

- dissenting opinion of Mr Bernhardt, joined by Mr Lopes Rocha;

- dissenting opinion of Mr Baka;

- dissenting opinion of Mr Jambrek;

- dissenting opinion of Mr Pettiti;

- dissenting opinion of Mr Gölcüklü.

CONCURRING OPINION OF JUDGE WILDHABER, JOINED

DISSENTING OPINION OF JUDGE BERNHARDT JOINED

DISSENTING OPINION OF JUDGE BAKA

dispute as to whether there is a continuing situation without endorsing or

DISSENTING OPINION OF JUDGE JAMBREK

of the Convention because of the prior acceptance of the validity of the