CASE OF LOIZIDOU v. TURKEY

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 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:
Mr A. Markides, Attorney-General, Agent,
Mr M. Triantafyllides, 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,
to the Ministry of Foreign Affairs,
to the Ministry of Foreign Affairs, Advisers;
Mr A. Demetriades, Barrister-at-Law,
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.
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:
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:
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.
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).
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.
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."
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.
1. Dismisses by eleven votes to six the preliminary objection ratione temporis;