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ECtHR - Loizidou v Turkey, Application no. 15318/89, 18 December 1996
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Country of Applicant:
Cyprus
Date of Decision:
18-12-1996
Citation:
Loizidou v Turkey [1995] ECtHR, Application no. 15318/89
Court Name:
European Court of Human Rights (Grand Chamber)
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 1
Council of Europe Instruments > ECHR (Frist Protocol) > Art 1
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 14
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 25
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 28
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 31
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 32
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 46
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 47
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 49
Headnote:
Mrs Loizidou argued that the refusal by Turkish troops to allow her access to property she claimed to own in northern Cyprus violated her right to peaceful enjoyment of her property. The Court held that Turkey could be held responsible for what was a continuing violation of the right under Article 1 of Protocol No. 1.
Facts:
Mrs Loizidou lived and owned land in northern Cyprus prior to the Turkish occupation of the area. She brought a claim against Turkey arguing that she was still the legal owner of the land despite the legal provisions put in place by the constitution of the new Republic established there. She claimed that the Turkish forces had prevented and continued to prevent her from returning to northern Cyprus and peacefully enjoying her property. She argued that there had been violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention.
Decision & Reasoning:
The first legal issue to decide was the objection ratione temporis raised by the Turkish government. As Turkey’s 1990 declaration under Article 46 of the Convention excluded the ECtHR’s jurisdiction in respect of facts occurring prior to the date of deposit, it had to be shown that alleged violations were not confined to prior to 1990 and were still continuing. In order to be continuing, Mrs Loizidou had to still be the legal owner of the land. As the Turkish Republic of Northern Cyprus (TRNC) was considered to be an illegal regime by the international community, the Court decided it could not find its 1985 Constitution to be legally valid. Hence the provisions (Article 159) expropriating property abandoned by refugees have not caused the applicant to lose title to her property and the objection ratione temporis failed.
The second issue was whether Turkey could be held responsible for the alleged violations. The Court held that under Article 1 of the Convention the concept of ‘jurisdiction’ is not restricted to the national territory of the Contracting States. Due to the large number of active duty Turkish troops in northern Cyprus, the Turkish army exercised effective overall control over that part of the island. This entailed Turkey’s responsibility for the TRNC’s policies and actions. Thus the continuing denial of Mrs Loizidou’s access to her property fell within Turkey’s ‘jurisdiction’ within the meaning of Article 1.
Thirdly, Article 1 of Protocol No. 1 was found to be applicable as the complaint was held to concern more than just freedom of movement. As she had been refused access since 1974, she had lost all control over and any possibilities to use and enjoy her property. While the exceptional circumstances of the case meant that the Court did not find a violation under the first or second paragraphs of the article, it held that the case fell within the meaning of the first sentence. Her lack of access amounted to violation just like a legal impediment: the Article had been and continued to be breached.
Article 8 was not found to have been violated as the property she owned could not be considered her ‘home’ because she had moved away from there before the occupation.
Finally, with regard to Article 50 the Court held it was not ready for decision due to the exceptional circumstances of the case.
Outcome:
Application granted with regard to Article 1 of Protocol No.1, denied with regard to Article 8 of the Convention, and held to be not ready for decision with regard to Article 50 of the Convention.
Subsequent Proceedings :
Before the execution department of the Committee of Ministers the case is still open, notably in respect of the sums owed by the Turkish government which is still being contended by the applicant.
Observations/Comments:
The various dissenting opinions from the judges should be noted. They generally focused on the legal and political complexity of the issue at hand which was not caused by Turkey alone, some arguing that it raised issues which went beyond the conceptual framework of the Convention. Other points included whether international non-recognition is enough to find TRNC Constitutional Provisions to be devoid of all legal effect.
This case summary was written by Tabatha Pinto, GDL student at BPP University.
Case Law Cited:
UK - Hesperides Hotels Ltd and Another v Aegean Turkish Holidays Ltd and Another [1977]
UK - Polly Peck International Plc v Nadir (Asil) (No.2) Court of Appeal (Civil Division), 19 March 1992
ECtHR - Papamichalopoulos and Others v Greece (application no. 14556/89), 24 June 1993
ECtHR - Agrotexim and Others v Greece (application no. 14807/89), 24 October 1995
ECtHR - Gustafsson v Sweden (application no. 15573/89), 25 April 1996
ECtHR - Chrysostomos and Papachrysostomou v Turkey (Applications Nos. 15299/89 and 15300/89), 8 July 1993
ECtHR- McCann and Others v. the United Kingdom, Application no. 18984/91
United Kingdom - McMichael v The United Kingdom, Series A No 207-B(1995) 20 EHRR 205
Klaas and Others v. Germany, no. 5029/71
ECtHR - Johnston and Others v. Ireland, Application No. 9697/82
ECtHR - Golder v United Kingdom, 21 February 1975, § 29, Series A No. 18
ECtHR - Airey v Ireland, 9 October 1979, Series A No. 32 § 26
ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)
ECtHR - Loizidou v Turkey (Application no. 40/1993 and 435/514)
Attachment(s):
Other sources cited:
- Vienna Convention on Law of Treaties - Article 21 para. 3 (c)
- European Court of Human Rights Rules of Court A - Rules 24 para. 3 and 51
- Commission decisions on admissibility of applications nos. 6780/74 and 6950/75, Cyprus v Turkey, 26 May 1975
- United Nations Security Council Resolution 541 (1983), Resolution 550 (1984)
- European Communities Statement of 16 November 1983
- Commonwealth Heads of Government press communiqué of 23 to 29 November 1983
- Turkish declaration of 22 January 1990 under Article 46 of the Convention
- Resolution DH (95) of 19 October 1995
- Advisory Opinion on Legal Consequences for States of the Continued Presence in South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16
Authentic Language:
English
State Party:
Turkey
National / Other Legislative Provisions:
Turkey - Article 159 (1) (b) of the 7 May 1985 Constitution of the ‘Turkish Republic of Northern Cyprus’
Turkey - Settlement and Distribution of Land and Property of Equivalent Value Law of 28 August 1995
