(1997) 23 E.H.R.R. 513

Loizidou v. Turkey

Before the European Court of Human Rights

18 December 1996

*513 Loizidou v. Turkey

Application No. 15318/89

(Interference with property rights in northern Cyprus)

Before the European Court of Human Rights

ECHR

(The President, Judge Ryssdal; Judges Bernhardt, Gölküklü, Pettiti, Walsh,

Spielmann, Martens, Palm, Pekkanen, Loizou, Morenilla, Baka, Lopes Rocha,

Wildhaber, Mifsud Bonnici, Jambrek, Lohmus)

18 December 1996

The applicant, a Greek Cypriot, claimed that she owned property in northern Cyprus and that Turkish forces prevented her from returning to it. She complained, inter alia, that Turkey was responsible for the continuing violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention. She also claimed just satisfaction under Article 50.

Held:

(1) by 11 votes to 6 that the preliminary objection ratione temporis be dismissed;

(2) by 11 votes to 6 that the denial of access to the applicant's property and consequent loss of control thereof was imputable to Turkey;

(3) by 11 votes to 6 that there had been a breach of Article 1 of Protocol No. 1;

(4) unanimously that there had been no violation of Article 8 of the Convention;

(5) unanimously that the question of the application of Article 50 of the Convention was not ready for decision, and consequently,

(a) that the said question be reserved;

(b) that the Turkish Government and the applicant be invited 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) that the further procedure be reserved and that the power to fix the same if need be be delegated to the President of the Chamber.

Preliminary objection ratione temporis.

1.

(a) Under Article 46 of the Convention it is open to Contracting States 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 after the time of deposit. Consequently, the Court's jurisdiction only extends to the applicant's allegation of a continuing violation of her property rights after 22 January 1990. [32]

(b) 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 declaration is evident from the words used in the last sentence and can reasonably be inferred from them. [34]

(c) In principle, the Court is not prevented in its examination of the *514 merits of a complaint from having regard to new facts, supplementing and clarifying those established by the Commission, if it considers them to be relevant. [39]

(d) Although the objection ratione temporis was raised by the Turkish Government in the proceedings before the Commission, in the latter's admissibility decision there was no discussion or analysis 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 memorial but also in the appendices to the Cypriot Government's memorial. Against this background, the plea that Turkey should be estopped from introducing new facts relating to the 1985 Constitution which were not referred to during the proceedings before the Commission must fail. [40]

(e) The Court has endorsed the notion of a continuing violation of the Convention and its effects as to temporal limitations of the competence of the Convention organs. Accordingly, the present case concerns alleged violations of a continuing nature if the applicant, for the purposes of Article 1 of Protocol No. 1 and Article 8 of the Convention, can still be regarded as the legal owner of the land. [41]

(f) The Convention must be interpreted in the light of the rules of interpretation set out in the Vienna Convention on the Law of Treaties, 1969. Article 31(3)(c) of the Vienna Convention indicates that account is to be taken of "any relevant rules of international law applicable in the relations between the parties". The principles underlying the European Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention's special character as a human rights treaty, the Court 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. [43]

(g) It is evident from international practice and the various, strongly worded resolutions 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 Article 159 of the fundamental law on which the Turkish Government rely. [44]

(h) The Court 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. [45]

(i) 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 have been advanced by the Turkish Government or found by the Court, which notes that the legitimate Government of Cyprus has consistently asserted that Greek Cypriot owners of immovable property in the northern part of *515 Cyprus have retained their title and should be allowed to make free use of their possessions. For the purposes of Article 1 of Protocol No. 1 and Article 8 of the Convention, the applicant must still be regarded as the legal owner of the land. The objection ratione temporis therefore fails. [46]-[47]

Protection of property: interference; imputability to the Turkish Government; "jurisdiction" (Art. 1 of Protocol No. 1 and Art. 1).

2.

(a) The concept of "jurisdiction" under Article 1 of the Convention 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. In conformity with the relevant principles of international law governing State responsibility, the responsibility of a Contracting State can 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. [52]

(b) 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". Furthermore, it has not been disputed that the applicant has on several occasions been prevented from gaining access to her property. However, the Turkish Government have denied State responsibility for the matters complained of, maintaining that their armed forces are acting exclusively in conjunction with and on behalf of the allegedly independent and autonomous "TRNC" authorities. [54]

(c) Under the scheme of the Convention, the establishment and verification of facts is primarily a matter for the Commission. However, the Court is not 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. The Court must assess the evidence with a view to determining whether the continuous denial of access to the applicant's property and the ensuing loss of all control over it is imputable to Turkey. [55]-[56]

(d) It is not necessary to determine whether Turkey actually exercises detailed control over the policies and actions of the "TRNC" authorities. It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises overall control over that part of the island. Such control entails her responsibility for the policies and actions of the "TRNC". Those affected by such policies therefore come within the "jurisdiction" of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus. [56]

(e) In view of this conclusion the Court need not pronounce on the lawfulness or unlawfulness under international law of Turkey's military intervention in the island in 1974 since the establishment of State responsibility does not require such an inquiry. It suffices to recall that the international community considers that the Republic of Cyprus is the sole legitimate Government of the island and has *516 consistently refused to accept the legitimacy of the "TRNC" as a State. [56]

(f) It follows 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 falls within Turkey's "jurisdiction" within the meaning of Article 1 of the Convention and is thus imputable to Turkey. [57]

Protection of property: interference (Art. 1 of Protocol No. 1).

3.

(a) The applicant's complaint is not limited to the question of physical access to her property. Her complaint is that Turkey, by refusing her access to her property, has affected her right as a property owner and in particular her right to peaceful enjoyment of her possessions. Accordingly, the Court cannot accept the characterisation of her complaint as being limited to the right to freedom of movement. Article 1 of Protocol No. 1 is thus applicable. [60]-[61]

(b) With respect to the question whether Article 1 of Protocol No. 1 is violated, the applicant must be regarded as having remained the legal owner of the land. [62]

(c) However, since she has been refused access to the land since 1974, she has effectively lost all control 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. Such an interference cannot, in the exceptional circumstances of the present case, 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. However, it clearly falls within the meaning of the first sentence of that provision 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. [63]

(d) 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 justify the above interference with the applicant's property rights which is imputable to Turkey. It has not 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 justify this situation under the Convention. In such circumstances there has been and continues to be a breach of Article 1 of Protocol No. 1. [64]

4. Right to respect for "home" (Art. 8).

The applicant did not have her home on the land in question. It would strain the meaning of the notion "home" in Article 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. [66]

*517 5. Just satisfaction (Art. 50).

The issues raised by the applicant's claims for just satisfaction have not been commented on by the Turkish Government in their memorial or discussed by those appearing before the Court. Under these circumstances, taking into account the exceptional nature of the case, the question of the application of Article 50 is not ready for decision. It must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the parties. [68]-[69]

Representation

Mr B. Caglar (Agent), Mr T. Özkarol, Mr E. Apakan, Mr H. Golsong (Counsel), Mrs D. Akçay, Mr Ö. Koray, Mr Z. Necatigil (Counsel) for the Turkish Government.

Mr A. Markides, Attorney-General (Agent), Mr M. Triantafyllides, Barrister-at- Law, Mr M. Shaw, Barrister-at-Law, Mrs T. Polychonidou, 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 Cypriot Government.

Mr S. Trechsel (Delegate) for the Commission.

Mr A. Demetriades, Barrister-at-Law, Mr I. Brownlie Q.C., Ms J. Loizidou, Barrister-at-Law (Counsel) for the applicant.

The following cases are referred to in the judgment:

1. Agrotexim v. Greece (A/330): (1996) 21 E.H.R.R. 250.

2. Airey v. Ireland (A/32): 2 E.H.R.R. 305.

3. Cruz Varas v. Sweden (A/201): (1992) 14 E.H.R.R. 1.

4. Golder v. United Kingdom (A/18): 1 E.H.R.R. 524.

5. Gustafsson v. Sweden: (1996) 22 E.H.R.R. 409.

6. Johnston v. Ireland (A/112): (1987) 9 E.H.R.R. 203.

7. Klaas v. Germany (A/269): (1994) 18 E.H.R.R. 305.

8. Loizidou v. Turkey (Preliminary Objections) (A/310): (1995) 20 E.H.R.R. 99.

9. McCann v. United Kingdom (A/324): (1996) 21 E.H.R.R. 97.

10. McMichael v. United Kingdom (A/307-B): (1995) 20 E.H.R.R. 205.

11. Papamichalopoulos v. Greece (A/260-B): (1993) 16 E.H.R.R. 440.

12. Applications Nos. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomou and Loizidou v. Turkey, Dec. 4.3.91, D.R. 68, p. 216.

13. Application Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2, p. 125.

14. Application No. 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13, p. 85.

15. Legal Consequences for States of the Continued Presence of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970): Advisory Opinion, I.C.J. Reports 1971, p. 16.

16. Hesperides Hotels Ltd v. Aegean Turkish Holidays Ltd [1977] 3 W.L.R. 656.

17. Polly Peck International Plc v. Asil Nadir [1992] 4 All E.R. 769.

The following additional case is referred to in the dissenting opinion of Judge Pettiti:

18. Holy Monasteries v. Greece (A/301-A): (1995) 20 E.H.R.R. 1. *518

The following additional cases are referred to in the dissenting opinion of Judge Gölcüklü:

19. Drozd and Janousek v. France and Spain (A/240): (1992) 14 E.H.R.R. 745.

20. Application No. 16137/90, Bui Van Thanh v. United Kingdom, Dec. 12.3.90, D.R. 65, p. 330.

21. Application No. 17392/90, M. v. Denmark, Dec. 14.10.92, D.R. 73, p. 193.

22. Application No. 7547/76, X. v. United Kingdom, Dec. 15.12.77, D.R. 12, p. 73.

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 [FN1] in the village of Lymbia near the Turkish village of Akinodotncinodotlar 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.

FN1 "Women Walk Home" movement.

Leading a group of 50 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 10 hours.

15. In his report of 31 May 1989 [FN2] on the United Nations Operation in Cyprus [FN3] the Secretary-General of the United Nations described the demonstration of 19 March 1989 as follows [FN4]:

In March 1989, considerable tension occurred over the well- publicized *519 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.

FN2 Security Council document S/20663.

FN3 For the period 1 December 1988-31 May 1989.

FN4 At para. 11.

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, stipulated so far as concerns "TRNC citizens" by the Prohibited Military Areas Decree of 1979 [FN5] and Article 156 of the Constitution of the "TRNC".

FN5 s.9.

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 *520 Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the abovementioned 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 10 Member States of the European Community are deeply concerned by the declaration purporting to establish a 'Turkish Republic of *521 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 23-29 November 1983, issued a press communique 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. Turkish declaration of 22 January 1990 under Article 46 of the Convention

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:

On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 of the European Convention for the Protection of Human Rights and Fundamantal Freedoms, I hereby declare as follows:

The Government of the Republic of Turkey acting in accordance with Article 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, 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.

*522 PROCEEDINGS BEFORE THE COMMISSION

26. Mrs Loizidou lodged her application [FN6] on 22 July 1989. She complained that her arrest and detention involved violations of Articles 3, 5 and 8 of the Convention. She further complained that the refusal of access to her property constituted a continuing violation of Article 8 of the Convention and Article 1 of Protocol No. 1.

FN6 App. No. 15318/89.

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 in respect of her arrest and detention and Article 8 and Article 1 of Protocol No. 1 concerning continuing violations of her right of access to property alleged to have occurred subsequent to 29 January 1987. Her complaint under the latter two provisions of a continuing violation of her property rights before 29 January 1987 was declared inadmissible.

In its report of 8 July 1993, [FN7] it expressed the opinion that there had been no violation of Article 3 [FN8]; Article 8 as regards the applicant's private life [FN9]; Article 5(1) [FN10]; Article 8 as regards the applicant's home [FN11] and Article 1 of Protocol No. 1. [FN12]

FN7 Made under Art. 31.

FN8 Unanimously.

FN9 Eleven votes to two.

FN10 Nine votes to four.

FN11 Nine votes to four.

FN12 Eight votes to five. The full text of the Commission's opinion and of the three separate opinions contained in the report can be found in (1995) 20 E.H.R.R. 99, at 113.

JUDGMENT

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 as well as a continuing violation of the right to respect for her home under Article 8 of the Convention.

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 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 *523 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. [FN13]

FN13 See Loizidou v. Turkey (Preliminary Objections) (A/310): (1995) 20 E.H.R.R. 99, paras. 102-105.

A. The wording of the Article 46 Declaration

33. In their memorial on the merits, the Cypriot Government submitted that Turkey's Article 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". [FN14] The same observation was made as regards the Government's Article 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.

FN14 See para. 24 above.

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 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 Declarations. [FN15]

FN15 See the admissibility decision in Apps. Nos. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomou and Loizidou v. Turkey, 4.3.91, D.R. 68, p. 216, pp. 250-251.

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 [FN16] 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 *524 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. [FN17]

FN16 See para. 18 above.

FN17 Hesperides Hotels Ltd v. Aegean Turkish Holidays Ltd [1977] 3 W.L.R. 656 (Court of Appeal), and Polly Peck International Plc v. Asil Nadir [1994] 2 All E.R. 769 (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". [FN18]

FN18 See Comm. Rep. 8.7.93, paras. 143-170, 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, viz. on 7 May 1985 at the latest. The judgment of the Court in the Papamichalopoulos and Others v. Greece case, [FN19] 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.

FN19 (A/260-B): (1993) 16 E.H.R.R. 440.

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. 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 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 *525 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 and Article 8 of the Convention 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. [FN20]

FN20 See McMichael v. United Kingdom (A/307-B): (1995) 20 E.H.R.R. 205, para. 73, and Gustafsson v. Sweden: (1996) 22 E.H.R.R. 409, 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. [FN21]

FN21 See, Inter Alia, Papamichalopoulos v. Greece (A/260-B): (1993) 16 E.H.R.R. 440, para. 46, and Agrotexim v. Greece (A/330): (1996) 21 E.H.R.R. 250, para. 58.

Accordingly, the present case concerns alleged violations of a continuing nature if the applicant, for purposes of Article 1 of Protocol *526 No. 1 and Article 8 of the Convention, can still be regarded--as remains to be examined by the Court--as the legal owner of the land.

42. It has had regard to the Turkish Government's allegation that "the process of 'the taking' of property in northern Cyprus started in 1975 and ripened into an irreversible expropriation by virtue of Article 159 of the ' TRNC' Constitution of 7 May 1985". [FN22] 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. [FN23]

FN22 See para. 35 above.

FN23 See para. 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. [FN24] The Committee of Ministers of the Council of Europe in a Resolution of 24 November 1983 also condemned the proclamation of statehood and called upon all States to deny recognition to the "TRNC". [FN25] A position to similar effect was taken by the European Community and the Commonwealth Heads of Government. [FN26] 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. [FN27]

FN24 Adopted on 11 May 1984.

FN25 See paras. 19-21 above.

FN26 See paras. 22-23 above.

FN27 See the Commission's decisions on the admissibility of Apps. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2, p. 125, at pp. 135-136; and App. No. 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13, p. 85, at 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(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". [FN28]

FN28 See, Inter Alia, Golder v. United Kingdom (A/18): 1 E.H.R.R. 524, para. 29, Johnston v. Ireland (A/112): (1987) 9 E.H.R.R. 203, para. 51, and Loizidou v. Turkey (Preliminary Objections), loc. cit., 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.

*527 44. In this respect it is evident from international practice and the various, strongly worded resolutions referred to above [FN29] 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.

FN29 See para. 42 above.

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". [FN30]

FN30 See, in this context, Legal Cosequences for States of the Continued Presence of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970): Advisory Opinion, I.C.J. Reports 1971, p. 16, 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 and Article 8 of the Convention, 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

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 is imputable to the Turkish Government and constitutes a violation of Article 1 of Protocol No. 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.

*528 The preceding provisions 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, [FN31] 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 particularly entailed that in order to determine whether Turkey is responsible for the alleged violation of her rights under Article 1 of Protocol No. 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 she 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.

FN31 Loizidou v. Turkey (Preliminary Objections), loc. cit., paras. 57-58.

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, involve a guarantee to secure Convention rights.

She 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 *529 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 it had jurisdiction in northern Cyprus within the meaning of Article 1 of the Convention. 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". [FN32] 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. [FN33]

FN32 See the Commission's decisions on the admissibility of Apps. Nos. 6780/74, 6950/75 and 8007/77, loc. cit.

FN33 loc. cit.

In addition, the Turkish Government contended that the question of jurisdiction in Article 1 of the Convention is not identical with the question of State responsibility under international law. Article 1 was not couched in terms of State responsibility. In their submission this provision 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 *530 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 v. Turkey (Preliminary Objections) judgment [FN34] it stressed that under its established case law the concept of "jurisdiction" under Article 1 of the Convention 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. [FN35]

FN34 loc. cit., para. 62.

FN35 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". [FN36] Furthermore, it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property. [FN37]

FN36 ibid., para. 63.

FN37 See paras. 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. [FN38] It is not, however, bound by the Commission's findings *531 of fact and remains free to make its own appreciation in the light of all the material before it. [FN39]

FN38 Arts. 28(1) and 31.

FN39 See, Inter Alia, Cruz Varas v. Sweden (A/201): (1992) 14 E.H.R.R. 1, para. 74, Klaas v. Germany (A/269): (1994) 18 E.H.R.R. 305, para. 29, and McCann v. United Kingdom (A/324): (1996) 21 E.H.R.R. 97, 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. [FN40] 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. [FN41] 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.

FN40 See Comm. Rep. 8.7.93, paras. 93-95.

FN41 See paras. 59 and 61 below.

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 [FN42] 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". [FN43] Those affected by such policies or actions therefore come within the "jurisdiction" of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus.

FN42 See para. 16 above.

FN43 See para. 52 above.

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 inquiry. [FN44] 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. [FN45]

FN44 See para. 52 above.

FN45 See para. 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 *532 within Turkey's "jurisdiction" within the meaning of Article 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, 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 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". [FN46] 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.

FN46 See Comm. Rep. 8.7.93, p. 21, and the decision on admissibility in Chrysostomos, Papachrysostomou and Loizidou v. Turkey, loc. cit.

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 is thus applicable.

62. With respect to the qustion whether Article 1 is violated, the Court first recalls its finding that the applicant, for purposes of this Article, must be regarded as having remained the legal owner of the land. [FN47]

FN47 See paras. 39-47 above.

*533 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 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. Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred, [FN48] 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. However, it clearly falls within the meaning of the first sentence of that provision 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. [FN49]

FN48 See paras. 49-50 above.

FN49 See, Mutatis Mutandis, Airey v. Ireland (A/32): 2 E.H.R.R. 305, 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.

III. Alleged Violation of Article 8 of the Convention

65. The applicant also alleged an unjustified interference with the right to respect for her home in violation of Article 8 of the Convention, paragraph 1 of which 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. [FN50] 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.

FN50 See para. 12 above.

*534 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 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.

IV. Application of Article 50 of the Convention

67. Article 50 of the Convention 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 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 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 11 votes to 6 the preliminary objection ratione temporis;

2. Holds by 11 votes to 6 that the denial of access to the applicant's property and consequent loss of control thereof is imputable to Turkey;

3. Holds by 11 votes to 6 that there has been a breach of Article 1 of Protocol No. 1;

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

5. Holds unanimously that the question of the application of Article 50 of the Convention is not ready for decision; and consequently, *535

(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.

In accordance with Article 51(2) of the Convention and Rule 53(2) of Rules of Court A, the concurring opinion of Mr Wildhaber joined by Mr Ryssdal, the dissenting opinion of Mr Bernhardt joined by Mr Lopes Rocha, the dissenting opinion of Mr Baka, the dissenting opinion of Mr Jambrek, the dissenting opinion of Mr Pettiti and the dissenting opinion of Mr Gölcüklü are annexed to this judgment.

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. [FN51] That claim must indeed fail.

FN51 See para. 35 of the judgment.

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, [FN52] 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 *536 "Turkish Cypriots") but what is now the majority in the northern part of Cyprus. This group invokes a right of 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".

FN52 See para. 42.

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. 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 borderline 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.

*537 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 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, [FN53] 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 of Human Rights.

FN53 As in Papamichalopoulos v. Greece, loc. cit.

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 borderline with automatic consequences for 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 [FN54] 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".

FN54 See paras. 45-47 of the judgment.

Therefore, the preliminary objection ratione temporis raised by Turkey is in my view legally well-founded.

3. Even if I have 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. 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, [FN55] 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 borderline, 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 *538 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.

FN55 loc. cit.

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, between the period 1974 and 1985 the applicant still held legal title to her land. She purportedly lost ownership by the formal act of expropriation pursuant to Articles 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 consequencs 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 *539 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. [FN56]

FN56 loc. cit., paras. 103 and 104.

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, *540 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 propety resulted in her loss of control, amounting to a breach of Article 1 of Protocol No. 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. [FN57]

FN57 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 stage. It appeared as obvious that an individual member of the Commission may 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 first accepting the preliminary objection, and then going into the merits, or (c) to hold that there was a breach after first 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 1 was re-interpreted 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 have either (a) not expressed a valid opinion on the issue of violation at the merits stage, [FN58] or (b) have expressed a valid opinion on this. [FN59]

FN58 The Cyprus Government position.

FN59 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.

*541 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 stage. If the judge took 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 would 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 "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 *542 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 [FN60] 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"'.

FN60 loc. cit.

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 Titina 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 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 *543 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 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 *544 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 repect 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

I voted with the minority against finding a violation of Article 1 of Protocol No. 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. [FN61]

FN61 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 [FN62] 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. [FN63] 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. [FN64]

FN62 "Occupation", "annexation", territorial application of the Geneva Conventions in northern Cyprus, "conduct of international relations".

FN63 See Security Council resolution 930.

FN64 Individual Dissenting Opinion: (1995) 20 E.H.R.R. 99, at pp. 148-149.

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. [FN65]

FN65 Joint Dissenting Opinion of Judge Gölcüklü and myself, ibid., at p. 142.

*545 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 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 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. 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. [FN66] 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.

FN66 See para. 50 of the judgment.

The Court's reference to the international community's views about the Republic of Cyprus and the TRNC [FN67] 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 *546 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, should be attributed.

FN67 See para. 56 of the judgment.

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. [FN68] The case of Taiwan is comparable.

FN68 See para. 51 of the judgment.

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 producd 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. [FN69] Quite apart from the problem of admissibility raised by the wording of Turkey's declaration under Article 46 of the Convention, 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 *547 appropriate, as the Commission observed in paragraphs 97 and 98 of its report.

FN69 See para. 32 of the judgment.

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 [FN70] and that it concluded that the applicants' arrest, detention and trial in the above-mentioned cases were not acts imputable to Turkey. [FN71] In its report of 8 September 1993 the Commission refrained from ruling on the status of the TRNC.

FN70 See Apps. Nos. 6780/74, 6950/75 and 8007/77, loc. cit.

FN71 See para. 51 of the judgment and para. 114 of the Turkish Government's memorial.

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. It is noteworthy that since 1990 there has been no multiple interstate 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

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 politial difficulties which go well beyond the conceptual framework established by the Convention and the whole of the court's case law hitherto.

1. First, the present judgment contains serious methodological flaws. As I pointed out in my dissenting opinion on the preliminary objections in the same case, [FN72] 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 *548 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 data base 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". [FN73] Likewise, in its report on 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 para. 11 sub-para. (b) of the report of the Secretary-General of the United Nations ... and to para. 6 of the Unmanning Agreement of 1989 ... [FN74]

FN72 loc. cit.

FN73 See para. 82 of the report.

FN74 See para. 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 v. Turkey 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. [FN75]

FN75 App. No. 16137/90, Bui Van Thanh v. United Kingdom, Dec. 12.3.90, D.R. 65, p. 330, at pp. 334 et seq.

In its decision of 26 May 1975 concerning the case of Cyprus v. Turkey [FN76] the Commission had already taken the same view. That *549 decision clearly shows that it is not a question of the Convention's application ratione loci, but of its application ratione personae.

FN76 Apps. Nos. 6780/74 and 6950/75, loc. cit.

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". [FN77]

FN77 App. No. 17392/90, M. v. Denmark, Dec. 14.10.92, D.R. 73, p. 193, and App. No. 7547/76, X. v. United Kingdom, Dec. 15.12.77, D.R. 12, p. 73.

In its Drozd and Janousek 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. [FN78]

FN78 Drozd and Janousek v. France and Spain (A/240): (1992) 14 E.H.R.R. 745, para. 91.

In its report on 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. [FN79]

FN79 See para. 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 onto 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 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 *550 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 on 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. [FN80]

FN80 See paras. 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. 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 borderline 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, 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 [FN81] 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.

FN81 Turkey, the United Kingdom and Greece.

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: *551

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 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 Benhardt, 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 borderline with automatic consequences for 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 *552 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. 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. [FN82]

FN82 See the Commission's report on the application of Loizidou v. Turkey, App. No. 15318/89, 8.7.93, paras. 97, 98 and 101.

@

(1995) 20 E.H.R.R. 99

Loizidou v. Turkey

Before the European Court of Human Rights

23 March 1995

FOR EDUCATIONAL USE ONLY

*99 Loizidou v. Turkey

Series A, No. 310

Application No. 15318/89

(Jurisdiction over Northern Cyprus; invalidity of reservations to Articles 25

and 46 Declarations)

Before the European Court of Human Rights

ECHR

(The President, Judge Ryssdal; Judges Bernhardt, Gölküklü, Pettiti, Walsh,

Macdonald, Spielmann, Martens , Palm, Pekkanen, Loizou, Morenilla, Baka, Lopes

Rocha, Wildhaber , Mifsud Bonnici, Jambrek, Lohmus )

23 March 1995

The applicant, a Greek Cypriot, claimed that she owned property in northern Cyprus and that Turkish forces prevented her from returning to it. During a march to assert the rights of Greek Cypriot refugees she was detained by members of the Turkish Cypriot police force. She complained that her arrest and detention violated Articles 3, 5 and 8of the Convention and that the denial of access to her property was a continuing violation of Article 8of the Convention and Article 1 of Protocol No. 1.

Held:

(1) unanimously that the preliminary objection concerning an alleged abuse of process should be dismissed;

(2) by 16 votes to two that the facts alleged by the applicant were capable of falling within Turkish "jurisdiction" within the meaning of Article 1of the Convention;

(3) by 16 votes to two that the territorial restrictions attached to Turkey's Article 25 and Article 46 declarations under the Convention were invalid but that the Turkish declarations under Articles 25 and 46 contained valid acceptances of the competence of the Commission and Court;

(4) unanimously that the preliminary objection ratione temporis should be joined to the merits.

Preliminary objection: standing of applicant Government.

1.

(a) The applicant Government have been recognised by the international community as the Government of the Republic of Cyprus. Therefore their locus standi as the Government of a High Contracting Party to the Convention cannot be in doubt. Moreover it has not been contested that the applicant is a national of the Republic of Cyprus. [40]

(b) In any event, recognition of an applicant Government by a respondent Government is not a precondition for either the institution of proceedings under Article 24 of the Convention or the referral of cases to the Court under Article 48. If it were otherwise, the system of collective enforcement which is a central element in the Convention system could be effectively neutralised by the *100 interplay of recognition between individual Governments and States. [41]

Preliminary objection: alleged abuse of process.

2.

(1) The respondent Government's objection that the overriding aim of the application was political propaganda was not raised in the proceedings before the Commission. Accordingly the Turkish Government is estopped from raising it before the Court in so far as it applies to the applicant. In so far as it is directed to the applicant Government, that Government referred the case to the Court out of concern for the rights of the applicant and other citizens in the same situation. Such motivation is not an abuse of judicial procedures. It follows that this objection must be rejected. [44]-[45]

(b) The Court leaves open the question whether it could refuse jurisdiction in an application by a State under Article 48(b) on the grounds of its allegedly abusive character. [46]

3. Preliminary objection: Turkish Government's role in proceedings.

The Turkish Government submitted that the case did not concern the acts and omissions of Turkey but those of the Turkish Republic of Northern Cyprus, an independent State. However, it does not lie within the discretion of a Contracting Party to the Convention to characterise its standing in the proceedings before the Court in the manner it sees fit. The case originates in a petition made under Article 25, brought by the applicant against Turkey in her capacity as a High Contracting Party to the Convention, and has been referred to the Court under Article 48(b) by another High Contracting Party. The Court therefore considers--without prejudging the remainder of the issues in the proceedings--that Turkey is the respondent Party in this case. [47]-[52]

4. Scope of the case.

In the application referring the case to the Court under Article 48(b) of the Convention, the applicant Government have confined themselves to seeking a ruling on the complaints under Article 1 of Protocol No. 1 and Article 8, in so far as they have been declared admissible by the Commission, concerning access to the applicant's property. Accordingly, it is only these complaints which are before the Court. The remaining part of the case concerning the applicant's arrest and detention thus falls within the competence of the Committee of Ministers of the Council of Europe in accordance with Article 32(1) of the Convention. Since the issue whether the Convention and the Rules of Court permit a partial referral under Article 48 has not been called into question, the respondent Government having accepted that the scope of the case be confined in this way, it is not necessary to give a general ruling as to whether it is permissible to limit a referral to the Court to some of the issues on which the Commission has stated its opinion. [54]

Preliminary objections ratione loci.

5.

(i) Whether the facts alleged by the applicant are capable of falling within the jurisdiction of Turkey under Article 1of the Convention. (a) At the preliminary objections stage of its procedure the Court is not called upon to examine whether Turkey is actually responsible under the Convention for the acts which form the basis of the applicant's complaints. Nor is it called upon to establish the principles that govern State responsibility under the Convention in a situation like that obtaining in northern Cyprus. Such questions belong rather to the merits phase of the procedure. The Court's inquiry is limited to determining whether the matters complained of *101 by the applicant are capable of falling within the "jurisdiction" of Turkey even though they occur outside her national territory. [61]

(b) Although Article 1 sets limits on the reach of the Convention, the concept of "jurisdiction"under this provision is not restricted to the national territory of the High Contracting Parties. According to established case law, for example, the extradition or expulsion of a person by a Contracting Party may give rise to an issue under Article 3 and hence engage the responsibility of that State under the Convention. In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory. [62]

(c) Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action--whether lawful or unlawful--it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. [62]

(d) The respondent Government have acknowledged that the applicant's loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment of the "TRNC". Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property. It follows that such acts are capable of falling within Turkish "jurisdiction" within the meaning of Article 1of the Convention. Whether the matters complained of are imputable to Turkey and give rise to State responsibility are questions which fall to be considered by the Court at the merits phase. [63]-[64]

(ii) The validity of the territorial restrictions attached to Turkey's Article 25 and 46 declarations. (a) Articles 25 and 46 of the Convention are essential to the effectiveness of the Convention system since they delineate the responsibility of the Commission and Court "to ensure the observance of the engagements undertaken by the High Contracting Parties" (Article 19), by determining their competence to examine complaints concerning alleged violations of the rights and freedoms set out in the Convention. In interpreting these key provisions regard must be had to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. [70]

(b) The Convention is a living instrument which must be interpreted in the light of present-day conditions. Such an approach is not confined to the substantive provisions of the Convention but also applies to those provisions, such as Articles 25 and 46, which govern the operation of the Convention's enforcement machinery. It follows that those provisions cannot be interpreted solely in accordance with the intentions of their authors as expressed more than 40 years ago. Accordingly, even if it had been established, which is not the case, that restrictions, other than those ratione temporis, were considered permissible under Articles 25 and 46 at a time when a minority of the present Contracting Parties adopted the Convention, such evidence could not be decisive. [71]

(c) In addition, the object and purpose of the Convention as an *102 instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as, to make its safeguards practical and effective. [72]

(d) To determine whether Contracting Parties may impose restrictions on their acceptance of the competence of the Commission and Court under Articles 25 and 46, the Court will seek to ascertain the ordinary meaning to be given to the terms of these provisions in their context and in the light of their object and purpose. It shall also take into account, together with the context, "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". [73]

(e) Both Article 25(2) and Article 46(2) explicitly permit the respective declarations to be made for a specified period. These provisions have been consistently understood as permitting Contracting Parties also to limit the retrospective application of their acceptance of the competence of the Commission and Court. Article 25 contains no express provision for other forms of restrictions. In addition, Article 46(2) provides that declarations "may be made unconditionally or on condition of reciprocity". If substantive or territorial restrictions were permissible under these provisions, Contracting Parties would be free to subscribe to separate regimes of enforcement of Convention obligations depending on the scope of their acceptances. Such a system, which would enable States to qualify their consent under the optional clauses, would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of European public order. Moreover, where the Convention permits States to limit their acceptance under Article 25, there is an express stipulation to this effect. Having regard to the object and purpose of the Convention system, the consequences for the enforcement of the Convention and the achievement of its aims would be so far-reaching that a power to this effect should have been expressly provided for. However, no such provision exists in either Article 25 or Article 46. [74]-[75]

(f) Article 64 of the Convention enables States to enter reservations when signing the Convention or when depositing their instruments of ratification. The power to make reservations under Article 64 is, however, a limited one, being confined to particular provisions of the Convention "to the extent that any law then in force in [the] territory [of the relevant Contracting Party] is not in conformity with the provisions". In addition, reservations of a general nature are prohibited. The existence of such a restrictive clause governing reservations suggests that States could not qualify their acceptance of the optional clause thereby effectively excluding areas of their law and practice within their "jurisdiction" from supervision by the Convention institutions. The inequality between Contracting States which the permissibility of such qualified acceptances might create would, moreover, run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights. [76]-[77]

(g) The above considerations in themselves strongly support the view that such restrictions are not permitted under the Convention system. This is confirmed by the subsequent practice of Contracting Parties under these provisions. Since the entry into force of the Convention until the present day, almost all of the 30 parties to the *103 Convention, apart from the respondent Government, have accepted the competence of the Commission and Court to examine complaints without restrictions ratione loci or ratione materiae. The only exceptions appear in the restrictions attached to the Cypriot declaration under Article 25which have now been withdrawn and the United Kingdom Article 25 declaration. Whatever its meaning, this declaration and that of Cyprus do not disturb the evidence of a practice denoting practically universal agreement amongst Contracting Parties that Articles 25 and 46 of the Convention do not permit territorial or substantive restrictions. The evidence of such a practice is further supported by the reactions of the Governments of Sweden, Luxembourg, Denmark, Norway and Belgium, as well as the Secretary-General of the Council of Europe as depositary, which reserved their positions as regards the legal questions arising as to the scope of Turkey's first Article 25 declaration, and the Government of Greece, which considered the restrictions to Turkey's declarations under Articles 25 and 46 to be null and void. [78]-[81]

(h) The existence of such a uniform and consistent State practice clearly rebuts the respondent Government's arguments that restrictions attaching to Articles 25 and 46 declarations must have been envisaged by the drafters of the Convention in the light of the practice under Article 36 of the Statute of the International Court of Justice. In this connection, it is not disputed that States can attach restrictions to their acceptance of the optional jurisdiction of the International Court. Nor has it been contested that Article 46 of the Convention was modelled on Article 36 of the Statute. However, it does not follow that such restrictions to the acceptance of jurisdiction of the Commission and Court must also be permissible under the Convention. In the first place, the context within which the International Court of Justice operates is quite distinct from that of the Convention institutions. The International Court is called on inter alia to examine any legal dispute between States that might occur in any part of the globe with reference to principles of international law. The subject-matter of a dispute may relate to any area of international law. In the second place, unlike the Convention institutions, the role of the International Court of Justice is not exclusively limited to direct supervisory functions in respect of a law-making treaty such as the Convention. Such a fundamental difference in the role and purpose of the respective tribunals, coupled with a practice of unconditional acceptance under Articles 25 and 46, provides a compelling basis for distinguishing Convention practice from that of the International Court. [82]-[85]

(i) Finally, the Court does not consider that the application of Article 63(4), an analogy, provides support for the claim that a territorial restriction is permissible under Articles 25 and 46. In accordance with the concept of "jurisdiction" in Article 1 of the Convention, State responsibility may arise in respect of acts and events outside State frontiers. It follows that there can be no requirement, as under Article 63(4) in respect of the overseas territories referred to in that provision, that the Article 25 acceptance be expressly extended before responsibility can be incurred. In addition, regard must be had to the fact that the object and purpose of Articles 25 and 63 are different. Article 63 concerns a decision by a Contracting Party to assume full responsibility under the Convention for all acts of public *104 authorities in respect of a territory for whose international relations it is responsible. Article 25, on the other hand, concerns an acceptance by a Contracting Party of the competence of the Commission to examine complaints relating to the acts of its own officials acting under its direct authority. Given the fundamentally different nature of these provisions, the fact that a special declaration must be made under Article 63(4) accepting the competence of the Commission to receive petitions in respect of such territories can have no bearing on the validity of restrictions ratione lociin Article 25 and 46 declarations. [86]- [88]

(j) Taking into consideration the character of the Convention, the ordinary meaning of Articles 25 and 46 in their context and in the light of their object and purpose and the practice of Contracting Parties, the restrictions ratione loci attached to Turkey's Article 25 and 46 declarations are invalid. It remains to be examined whether the validity of the acceptances themselves may be called into question. [89]

(iii) The validity of the Turkish declarations under Articles 25 and 46.

(a) In addressing this issue the Court must bear in mind the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19, "to ensure the observance of the engagements undertaken by the High Contracting Parties". It also recalls its judgment in Belilos v. Switzerland (A/132), that Switzerland was bound by the Convention despite the invalidity of the Swiss declaration. [93]-[94]

(b) The issue of the severability of the invalid parts of Turkey's declarations cannot be decided by reference to the statements of her representatives made subsequent to the filing of the declarations. Turkey must have been aware that the restrictive clauses were of questionable validity and took the risk that they would be declared invalid by the Convention institutions without affecting the validity of the declarations themselves. The issue must be decided with reference to the texts of the declarations and the special character of the Convention regime. The latter militates in favour of the severance of the impugned clauses since it is by this technique that the rights and freedoms set out in the Convention may be ensured in all areas falling within Turkey's "jurisdiction"within the meaning of Article 1 of the Convention. [95]-[96]

(c) Having examined the texts of the declarations and the wording of the restrictions with a view to determining whether the impugned restrictions can be severed from the instruments of acceptance or whether they form an integral and inseparable part of them, the Court considers that the restrictions can be separated from the remainder of the text leaving intact the acceptance of the optional clauses. It follows that the declarations of 28 January 1987 and 22 January 1990 under Articles 25 and 46contain valid acceptances of the competence of the Commission and Court. [97]-[98]

Preliminary objection ratione temporis.

6.

(a) It is open to Contracting Parties under Article 46 of the Convention to limit, as Turkey has done in her declaration of 22 January 1990, the acceptance of the jurisdiction of the Court to matters which occur subsequent to the time of deposit. It follows that the Court's jurisdiction extends only to the applicant's allegations of a continuing violation of her property rights subsequent to 22 January 1990. The different temporal competence of the Commission and *105 Court in respect of the same complaint is a direct and foreseeable consequence of separate Convention provisions providing for recognition of the right of individual petition and the jurisdiction of the Court. [102]

(b) The correct interpretation and application of the restrictions ratione temporis in the Turkish declarations under Articles 25 and 46 of the Convention and the notion of continuing violations of the Convention raise difficult legal and factual questions which cannot yet be decided. Moreover, they are so closely connected to the merits of the case that they should not be decided at the present phase of the procedure. The Court therefore decides to join this objection to the merits of the case. [103]-[105]

Representation

Mr B. çaglar (Agent), Mr H. Golsong (Counsel), Mr M. Özmen, Ministry of Foreign Affairs (Adviser), Mrs D. Akçay, Ministry of Foreign Affairs (Adviser) for the Turkish Government.

Mr M. Triantafyllides, Attorney-General (Agent), Miss P. Polychronidou, Barrister-at-Law (Counsel) for the Cypriot Government.

Mr S. Trechsel (Delegate) for the Commission.

Mr A. Demetriades, Barrister-at-Law, Mr I. Brownlie, Q.C., Ms J. Loizidou, Barrister-at-Law (Counsel) for the applicant.

The following cases are referred to in the judgment:

1. Belgian Linguistic Case (No. 1) (A/5): (1979-80) 1 E.H.R.R. 241.

2. Kjeldsen, Busk Madsen and Pedersen v. Denmark (A/23): (1979-80) 1 E.H.R.R. 711.

3. Ireland v. United Kingdom (A/25): (1979-80) 2 E.H.R.R. 25.

4. Tyrer v. United Kingdom (A/26): (1979-80) 2 E.H.R.R. 1.

5. Artico v. Italy (A/37): (1981) 3 E.H.R.R. 1.

6. Johnston v. Ireland (A/112): (1987) 9 E.H.R.R. 203.

7. Belilos v. Switzerland (A/132): (1988) 10 E.H.R.R. 466.

8. Soering v. United Kingdom (A/161): (1989) 11 E.H.R.R. 439.

9. Cruz Varas v. Sweden (A/201): (1992) 14 E.H.R.R. 1.

10. Vilvarajah and Others v. United Kingdom (A/215): (1992) 14 E.H.R.R. 248.

11. Drozd and Janousek v. France and Spain (A/240): (1992) 14 E.H.R.R. 745.

12. Papamichalopoulos v. Greece (A/260-B): (1993) 16 E.H.R.R. 440.

13. Stamoulakatos v. Greece (A/271): (1994) 17 E.H.R.R. 479.

14. Apps. Nos. 6780/74 and 6950/75 , Cyprus v. Turkey, Dec. 26.5.75 , D.R. 2, p. 125.

15. App. No. 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13, p. 85.

16. App. No. 7379/76, X. v. United Kingdom, Dec. 10.12.76, D.R. 8, p. 211.

17. App. No. 7317/75, Lynas v. Switzerland, Dec. 6.10.76, D.R. 6, p. 141.

The following additional case is referred to in the joint dissenting opinion of Judge Gölcüklü and Judge Pettiti:

18. App. No. 1065/61, X. and Others v. Belgium, Dec. 30.5.61, Yearbook 4, p. 261.

The following additional cases are referred to in the Report of the Commission:

19. X. and Y. v. Netherlands (A/91): (1986) 8 E.H.R.R. 235.

20. App. No. 8239/78, X. v. Netherlands, Dec. 4.12.78, D.R. 16, p. 184.

21. App. No. 8278/78, X. v. Austria, Dec. 13.12.79, D.R. 18, p. 154. *106

22. App. No. 10435/83, Acmanne v. Belgium, Dec. 10.12.84, D.R. 40, p. 251.

23. Costello-Roberts v. United Kingdom (A/247-C): (1995) 19 E.H.R.R. 112.

24. Wassink v. Netherlands (A/185-A): (1990).

25. Apps. Nos. 7671/76 etc., 15 Foreign Students v. United Kingdom, Dec. 19.5.77, D.R. 9, p. 185.

The following additional case is referred to in the partially concurring, partially dissenting opinion of Mr C.L. Rozakis:

26. Apps. Nos. 15299/89 and 15300/89 , Chrysostomos and Papachrysostomou v. Turkey, Dec. 4.3.91, D.R. 68, p. 216.

The Facts

I. The particular circumstances of the case

10. The applicant, a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she married and moved with her husband to Nicosia.

11. She claims to be the owner of plots of land Nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus and she alleges that prior to the Turkish occupation of northern Cyprus on 20 July 1974, work had commenced on plot No. 5390 for the construction of flats, one of which was intended as a home for her family. She states that she has been prevented in the past, and is still prevented by Turkish forces from returning to Kyrenia and "peacefully enjoying" her property.

12. On 19 March 1989 the applicant participated in a march organised by a women's group [FN1] 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.

FN1 "Women Walk Home" movement.

Leading a group of 50 marchers she advanced up a hill towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the United Nations' guard post on the way. When they reached the churchyard they were surrounded by Turkish soldiers and prevented from moving any further.

13. She was eventually detained by members of the Turkish Cypriot police force and brought by ambulance to Nicosia. She was released around midnight, having been detained for more than 10 hours.

14. In his report of 31 May 1989 [FN2]on the United Nations Operation in Cyprus [FN3] the Secretary-General of the United Nations described the demonstration of 19 March 1989 as follows [FN4]:

In March 1989, considerable tension occurred over the well-publicised plans of a Greek Cypriot women's group to organize a large *107 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-zoner 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.

FN2 Security Council document S/20663.

FN3 For the period 1 December 1988--31 May 1989.

FN4 At para. 11.

A. Turkey's declaration of 28 January 1987 under Article 25 of the Convention

15. On 28 January 1987 the Government of Turkey deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 25 of the Convention:

The Government of Turkey, acting pursuant to Article 25(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the competence of the European Commission of Human Rights and to receive petitions according to Article 25 of the Convention subject to the following:

(i) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Turkey performed within the boundaries of the territory to which the Constitution of the Republic of Turkey is applicable;

(ii) the circumstances and conditions under which Turkey, by virtue of Article 15 of the Convention, derogates from her obligations under the Convention in special circumstances must be interpreted, for the purpose of the competence attributed to the Commission under this declaration, in the light of Articles 119 to 122 of the Turkish Constitution;

(iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces;

(iv) for the purpose of the competence attributed to the Commission under this declaration, the notion of a "democratic society" in paragraphs 2 of Articles 8, 9, 10 and 11 of the Convention must be understood in conformity with the principles laid down in the Turkish Constitution and in particular its Preamble and its Article 13;

(v) for the purpose of the competence attributed to the Commission under the present declaration, Articles 33, 52 and 135 of the Constitution must be understood as being in conformity with Articles 10 and 11 of the Convention.

This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent *108 to the date of deposit of the present declaration. This declaration is valid for three years from the date of deposit with the Secretary General of the Council of Europe.

B. Exchange of correspondence between the Secretary General of the Council of Europe and the Permanent Representative of Turkey

16. On 29 January 1987 the Secretary General of the Council of Europe transmitted the above declaration to the other High Contracting Parties to the Convention indicating that he had drawn the Turkish authorities' attention to the fact that the notification made pursuant to Article 25(3) of the Convention in no way prejudged the legal questions which might arise concerning the validity of Turkey's declaration.

17. In a letter dated 5 February 1987 to the Secretary General, the Permanent Representative of Turkey to the Council of Europe stated that the wording of Article 25(3) of the Convention offered no basis for expressing opinions or adding comments when transmitting copies of the Turkish declaration to the High Contracting Parties. He added:

International treaty practice, in particular that followed by the Secretary General of the United Nations as depositary to similar important treaties as the Statute of the International Court of Justice or the covenants and conventions dealing with human rights and fundamental freedoms, also confirms that the depository has to refrain from any comments on the substance of any declaration made by a Contracting Party.

C. Reactions of various Contracting Parties to Turkey's Article 25 declaration

18. On 6 April 1987 the Deputy Minister of Foreign Affairs of Greece wrote to the Secretary General stating inter alia that reservations to the European Convention on Human Rights may not be formulated on the basis of any provision other than Article 64. He added:

Furthermore, Article 25 provides neither directly nor implicitly the possibility of formulating reservations similar to the reservations set out in the Turkish declaration. The position cannot be otherwise, for if reservations could be made on the basis of Article 25, such a method of proceeding would undermine Article 64 and would sooner or later destroy the very foundations of the Convention.

...

It follows that the Turkish reservations, as they are outside the scope of Article 64 must be considered as unauthorised reservations and, accordingly, as illegal reservations. Consequently, they are null and void and may not give rise to any effect in law.

19. In a letter of 21 April 1987 the Permanent Representative of Sweden wrote to the Secretary General stating inter alia that "the reservations and declarations ... raise various legal questions as to the scope of the [Turkish] recognition. The Government therefore reserves the right to return to this question in the light of such decisions by the competent bodies of the Council of Europe that may occur in connection with concrete petitions from individuals".

20. The Minister of Foreign Affairs of Luxembourg, in a letter of *109 21 April 1987 to the Secretary General stated inter alia that "Luxembourg reserves to itself the right to express ... its position in regard to the Turkish Government's declaration" before the competent bodies of the Council of Europe. He indicated that "the absence of a formal and official reaction on the merits of the problem should not ... be interpreted as a tacit recognition by Luxembourg of the Turkish Government's reservations".

21. In a letter of 30 April 1987 to the Secretary General the Permanent Representative of Denmark stated inter alia as follows:

In the view of the Danish Government, the reservations and declarations which accompany the said recognition raise various legal questions as to the scope of the recognition. The Government therefore reserves its right to return to these questions in the light of future decisions by the competent bodies of the Council of Europe in connection with concrete petitions from individuals.

22. The Permanent Representative of Norway, in his letter of 4 May 1987 to the Secretary General, stated that the wording of the declaration could give rise to difficult issues of interpretation as to the scope of the recognition of the right to petition. He considered that such issues fell to be resolved by the European Commission on Human Rights in dealing with concrete petitions. He added:

It is therefore desirable to avoid any doubt as to the scope and validity of the recognition by individual States of this right which may be raised by generalised stipulations in respect of the context in which petitions would be accepted as admissible, interpretative statements or other conditionalities.

23. In a letter dated 26 June 1987 to the Secretary General, the Permanent Representative of Turkey stated that the points contained in the Turkish declaration were not to be considered as "reservations" in the sense of international treaty law. He pointed out, inter alia, that the only competent organ to make a legally binding assessment as to the validity of the conditions attaching to the Article 25 declaration was "the European Commission of Human Rights, when being seised of an individual application, and eventually the Committee of Ministers, when acting pursuant to Article 32 of the Convention".

24. The Permanent Representative of Belgium, in a letter of 22 July 1987 to the Secretary General, stated that the conditions and qualifications set forth in the declaration raised legal questions as to the system of protection set up under the Convention. He added:

Belgium therefore reserves the right to express its position in regard to the Turkish Government's declaration, at a later stage and before the competent bodies of the Council of Europe. Meanwhile the absence of a formal reaction on the merits of the problem should by no means be interpreted as a tacit recognition by Belgium of the Turkish Government's conditions and qualifications.

D. Turkey's subsequent Article 25 declarations

25. Turkey subsequently renewed her declaration under Article 25 *110 of the Convention for three years as from 28 January 1990. The declaration read as follows:

The Government of Turkey, acting pursuant to Article 25(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the competence of the European Commission of Human Rights to receive petitions according to Article 25 of the Convention on the basis of the following:

(i) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Turkey performed within the boundaries of the national territory of the Republic of Turkey;

(ii) the circumstances and conditions under which Turkey, by virtue of Article 15 of the Convention, derogates from her obligations under the Convention in special circumstances must be interpreted, for the purpose of the competence attributed to the Commission under this declaration, in the light of Articles 119 to 122 of the Turkish Constitution;

(iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces;

(iv) for the purpose of the competence attributed to the Commission under this declaration, Articles 8, 9, 10 and 11 of the Convention shall be interpreted by giving special emphasis to "those legal and factual features which characterize the life of the society" [FN5] in Turkey, as expressed notably by the Turkish Constitution including its Preamble.

FN5 Belgian Linguistic Case (No. 2) (A/6): 1 E.H.R.R. 252, (p. 34) para. 10.

This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to 28 January 1987, date of the deposit of the previous declaration by Turkey. This declaration is valid for three years as from January 28, 1990.

26. A further renewal for a three-year period as from 28 January 1993 reads as follows:

The Government of Turkey, acting pursuant to Article 25(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, hereby declares to accept the competence of the European Commission of Human Rights, to receive petitions which raise allegations concerning acts or omissions of public authorities in Turkey in as far as they have been performed within the boundaries of the national territory of the Republic of Turkey.

This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to 28 January 1987, the date of the deposit of the first declaration made by Turkey under Article 25of the Convention. This declaration is valid for three years from 28 January 1993.

E. Turkish declaration of 22 January 1990 under Article 46 of the Convention

27. On 22 January 1990, the Turkish Minister of Foreign Affairs deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 46 of the Convention:

On behalf of the Government of the Republic of Turkey and acting in *111 accordance with Article 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 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, performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey.

This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration.

This declaration was renewed for a period of three years as from 22 January 1993 in substantially the same terms.

28. The Secretary General of the Council of Europe acknowledged deposit of the Turkish declaration under Article 46 in a letter dated 26 January 1990 and pointed out that her acknowledgement was without prejudice to the legal questions that might arise concerning the validity of the Turkish declaration.

29. In a letter of 31 May 1990 to the Secretary General of the Council of Europe, the Permanent Representative of Greece stated inter alia as follows:

Article 46 of the said Convention is clear and to be strictly interpreted and applied. It provides that declarations of recognition of the Court's jurisdiction may be subject to two conditions only: a) on condition of reciprocity, if they are not made unconditionally, and b) for a specified period.

Consequently, the above-mentioned declaration of the Turkish Government which, in addition to these two conditions, contains further restrictions or reservations, is, where the latter are concerned, incompatible with Article 46 and with the European Convention on Human Rights in general, as indeed was already pointed out in the Greek Government's letter of 6 April 1987 in connection with the Turkish Government's declaration under Article 25 of the said Convention. It follows that these restrictions or reservations are null and void and may have no legal effect.

II. Cypriot declaration under Article 25

30. By letter of 9 August 1988 the Government of Cyprus deposited the following declaration under Article 25 of the Convention:

On behalf of the Government of the Republic of Cyprus, I declare, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, that the Government of the Republic of Cyprus recognizes, for the period beginning on 1 January 1989 and ending on 31 December 1991, the *112 competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to 31 December 1988, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to 31 December 1988, to be the victim of a violation of the rights set forth in that Convention.

On behalf of the Government of the Republic of Cyprus, I further declare that the competence of the Commission by virtue of Article 25 of the Convention is not to extend to petitions concerning acts or omissions alleged to involve breaches of the Convention or its Protocols, in which the Republic of Cyprus is named as the Respondent, if the acts or omissions relate to measures taken by the Government of the Republic of Cyprus to meet the needs resulting from the situation created by the continuing invasion and military occupation of part of the territory of the Republic of Cyprus by Turkey.

31. In a letter dated 12 September 1988, the Secretary General recalled that according to the general rules, the notification made pursuant to Article 25(3) in no way prejudged the legal questions that might arise concerning the validity of the Cypriot declaration.

32. The declaration was renewed in the same terms on 2 January 1992. By letter of 22 December 1994 it was renewed for a further period of three years without the restrictions ratione materiae set out above.

III. The declaration of the United Kingdom under Article 25

33. The United Kingdom's Article 25 declaration of 14 January 1966, which has been renewed successively, reads as follows:

On instructions from Her Majesty's Principal Secretary of State for Foreign Affairs, I have the honour to declare in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th November, 1950, that the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only and not, pending further notification, in respect of any other territory for the international relations of which the Government of the United Kingdom are responsible, for the period beginning on the 14th January 1966, and ending on 13th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to the 13th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto which was opened for signature at Paris on the 20th March 1952.

This declaration does not extend to petitions in relation to anything done or occurring in any territory in respect of which the competence of the European Commission of Human Rights to receive petitions has not been recognised by the Government of the United Kingdom or to petitions in relation to anything done or occurring in the United Kingdom in respect of such a territory or of matters arising there.

*113 PROCEEDINGS BEFORE THE COMMISSION

34. Mrs Loizidou lodged her application [FN6] on 23 July 1989. She complained that her arrest and detention involved violations of Articles 3, 5 and 8 of the Convention. She further complained that the refusal of access to her property constituted a continuing violation of Article 8 of the Convention and Article 1 of Protocol No. 1.

FN6 App. No. 15318/89.

35. On 4 March 1991 the Commission declared the applicant's complaints admissible in so far as they raised issues under Articles 3, 5 and 8 in respect of her arrest and detention and Article 8 and Article 1 of Protocol No. 1 concerning continuing violations of her right of access to property alleged to have occurred subsequent to 29 January 1987. Her complaint under the latter two provisions of a continuing violation of her property rights before 29 January 1987 was declared inadmissible.

In its report of 8 July 1993, it expressed the opinion that there had been no violation of Article 3 [FN7]; Article 8 as regards the applicant's private life [FN8]; Article 5(1) [FN9]; Article 8 as regards the applicant's home [FN10] and Article 1 of Protocol No. 1. [FN11] The full text of the Commission's opinion and the three separate opinions contained therein follows.

Opinion

A. Complaints declared admissible

46. [FN12] The Commission has declared admissible the applicant's complaints concerning her arrest and detention on 19 March 1989 and access to her property. In its decision on the admissibility the Commission noted the applicant's claim that the acts complained of "were carried out by Turkish military forces stationed in the northern part of Cyprus or by forces acting under their authority".

FN7 Unanimously.

FN8 Eleven votes to two.

FN9 Nine votes to four.

FN10 Nine votes to four.

FN11 Eight votes to five.

FN12 The paragraph numbering from here to para. 106 in bold is the original numbering of the Commission's Opinion. Then we revert to the numbering of the Court's judgment.--Ed.

B. Points at issue

47. The Commission considers that the issues now to be determined are:

1. with regard to the applicant's arrest and detention:

(a) whether there has been a violation of Article 3 of the Convention;

(b) whether there has been a violation of Article 8 of the Convention, as regards the applicant's private life; *114

(c) whether there has been a violation of Article 5(1) of the Convention;

2. with regard to access to property:

(a) whether there has been a violation of Article 8 of the Convention, as regards the applicant's home;

(b) whether there has been a violation of Article 1 of Protocol No. 1 to the Convention.

C. Arrest and detention

1. Imputability

48. The applicant claims that her arrest and detention on 19 March 1989 were carried out by Turkish military forces stationed in the northern part of Cyprus or by forces acting under their authority.

49. The respondent Government do not deny that Turkish troops were involved in that incident.

50. The Commission, having regard to the report of the Secretary-General of the United Nations, finds it established that Turkish soldiers were involved in the applicant's arrest and detention.

51. It follows that the applicant's arrest and detention on 19 March 1989 are imputable to Turkey.

2. Articles 3 and 8 of the Convention

52. With regard to her treatment during her arrest and detention the applicant alleges a breach of Article 3 of the Convention which provides as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

53. The Commission has considered the applicant's complaint concerning her treatment during her arrest and detention also under Article 8 of the Convention, which provides as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

54. In the present case the Commission is confronted with different versions as regards the events on 19 March 1989.

(a) The character of the demonstration

55. The Commission notes the descriptions of the events given in the submissions by the applicant and by the respondent Government.

56. The Commission further notes the evidence give by the applicant (see para. 40 above) and the photographs submitted by her.

57. The Commission attaches particular weight to the evidence contained in the report of the Secretary-General of the United Nations. He stated that "considerable tension occurred over the *115 well-publicised plans of a Greek Cypriot women's group to organise a large demonstration with the announced intention of crossing the Turkish forces cease-fire line"and he described the demonstration as follows:

An estimated 2,000 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.

58. In the light of the above evidence the Commission finds that the demonstration constituted a serious threat to peace and public order on the demarcation line in Cyprus.

(b) The treatment of the applicant--evaluation of the evidence

59. The applicant submits that her arrest and detention constituted degrading treatment, in particular because of the way she was seized and brought to Nicosia under escort, a prisoner in her own country. She felt that her life was threatened and she was insulted by the crowd while she was in the ambulance.

60. The respondent Government state that the applicant was treated properly.

61. The Commission notes the applicant's description of the circumstances of her arrest and her detention and the evidence given by a witness proposed by her.

62. The Commission observes that the applicant passed before a United Nations' doctor and did not claim to have suffered any injuries. Moreover, two United Nations officers were present during her arrest and she was accompanied by a United Nations officer when transported in the ambulance.

(c) Application of Article 3 of the Convention to the facts established

63. The Commission recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim. [FN13]

FN13 Soering v. United Kingdom (A/161): (1989) 11 E.H.R.R. 439, para. 100.

64. The Commission does not find that the treatment to which the applicant was subjected during her arrest and detention attained a level of severity which was sufficient to bring it within the ambit of Article 3.

*116 Conclusion

65. The Commission concludes unanimously that there has been no violation of Article 3of the Convention.

(d) Application of Article 8 of the Convention to the facts established

66. The Commission observes that, as deprivations of liberty, arrest and detention primarily fall to be considered under Article 5 of the Convention.

67. With regard to Article 8 the Commission recalls that a person's "private life" includes his or her physical integrity. [FN14]

FN14 CF. E.G. X. and Y. v. Netherlands (A/91): (1986) 8 E.H.R.R. 235, para. 22; App. No. 8239/78 , X. v. Netherlands, Dec. 4.12.78 , D.R. 16, p. 184 at p. 189; App. No. 8278/78, X. v. Austria, Dec. 13.12.79, D.R. 18, p. 154; App. No. 10435/83, Acmanne v. Belgium, Dec. 10.12.84, D.R. 40, p. 251.

68. The Commission has therefore examined whether the treatment to which the applicant was subjected during her arrest and detention constituted an "interference" with her right, under Article 8, to respect for her private life, which was not justified under paragraph 2 of that Article.

69. The Commission considers that arrest and detention may affect the physical integrity, and thus the private life, of the arrested person. However, not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to an interference with the right to respect for private life. [FN15]

FN15 cf. Costello-Roberts v. United Kingdom (A/247-C): (1995) 19 E.H.R.R. 112, para. 36.

70. The Commission has found above [FN16] that the treatment to which the applicant was subjected during her arrest and detention did not attain a level of severity which was sufficient to bring it within the ambit of Article 3.

FN16 At para. 64.

71. Even assuming, under Article 8 of the Convention, that the applicant's arrest interfered with her private life, the Commission does not find that this interference exceeded the limits of what in the circumstances could reasonably be considered as "necessary", in the interest of public safety and for the prevention of disorder, within the meaning of the second paragraph of this article.

Conclusion

72. The Commission concludes by 11 votes to two that there has been no violation of Article 8 of the Convention, as regards the applicant's private life.

3. Article 5(1) of the Convention

73. Article 5(1)of the Convention provides as follows:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases *117 and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

74. The applicant submits that she was not arrested and detained "in accordance with a procedure prescribed by law" and that none of the grounds of lawful arrest and detention envisaged in paragraph 1 of Article 5were present. In particular, there was no reasonable suspicion of an offence in the normal sense having been committed, nor any necessity to prevent the commission of such an offence or to prevent subsequent flight. The alleged offence was of an artificial character relating to the "frontiers" of an illegal entity. The Turkish armed forces and their agents had no authority to arrest and detain the applicant.

75. The respondent Government submit that Article 5(1) was complied with. When arresting the applicant on the territory of the "Turkish Republic of Northern Cyprus", the police acted under the relevant provisions of domestic law. The authorities used the powers conferred on them in the context of international arrangements concerning the buffer-zone in Cyprus. In the respondent Government's view the Commission is not required to examine the validity or legitimacy of the legal system of the "Turkish Republic of Northern Cyprus" but only the question whether an effective legal system exists in that area. The arrest and detention of the applicant were justified under Article 5(1).

(a) Deprivation of liberty "in accordance with a procedure prescribed by law"

76. The Commission has examined whether the applicant was deprived of her liberty "in accordance with a procedure prescribed by law", as required by Article 5(1). It recalls that, on the question whether an arrest is "lawful", including whether it complies with "a procedure prescribed by law", the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with *118 the purpose of Article 5, namely to protect individuals from arbitrariness. [FN17]

FN17 See Wassink v. Netherlands (A/185-A) , para. 24, with further references.

77. As regards domestic law in Cyprus, the Commission notes that, under Chapter 155, section 14,(1)(b) and (c) of the Criminal Procedure Law, any police officer may, without warrant, arrest any person who commits in his presence any offence punishable with imprisonment or who obstructs a police officer, while in the execution of his duty.

78. The Commission further notes that the applicant, having crossed the buffer-zone, was arrested in northern Cyprus by Turkish Cypriot policemen.

79. Having regard to the above elements, the Commission finds that the arrest and detention of the applicant in Cyprus, by police officers acting under Chapter 155, section 14 of the Criminal Procedure Law, took place "in accordance with a procedure prescribed by law", as required by Article 5(1) of the Convention.

(b) Justification of the arrest and detention under Article 5(1)(f) of the

Convention

80. Article 5(1)(f) of the Convention permits the lawful arrest and detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

81. The applicant argues that she was arrested when crossing the "frontiers" of an illegal entity.

82. 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.

83. The Commission therefore finds that the applicant's arrest and detention were justified under Article 5(1)(f), as applied to the regime created in Cyprus by international agreements concerning the buffer-zone.

(c) Other issues under Article 5(1)

84. In view of its above finding the Commission does not consider it necessary to examine whether the applicant's arrest and detention were also justified under Article 5(1)(c) .

(d) Conclusion

85. The Commission concludes by nine votes to four that there has been no violation of Article 5(1) of the Convention.

*119 D. Access to property

1. Article 8 of the Convention

(a) Interference with home

86. Article 8(1)of the Convention provides that everyone has the right to respect for his home.

87. The applicant states that she intended to develop the property her father had given her in Kyrenia and return there to live. Construction had begun on plot No. 5390 and one of the flats was intended for her family. She submits that the continuous prevention of her return to this flat which would eventually become a home constitutes a continuous violation of Article 8.

88. The Commission notes that the applicant left Kyrenia in 1972 and moved to Nicosia, her present residence. Since 1972 her home has not been in Kyrenia. The fact that she is prevented from returning to Kyrenia does therefore not affect her right to respect for her home within the meaning of Article 8.

(b) Conclusion

89. The Commission concludes by nine votes to four that there has been no violation of Article 8 of the Convention, as regards the applicant's home.

2. Article 1 of Protocol No. 1

90. Article 1 of Protocol No. 1 to the Convention provides:

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 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.

91. The applicant submits that Turkey, through the use of its armed forces and by the continued occupation and control of part of Cyprus and by prohibiting the applicant on a number of occasions from gaining access to the said part of Cyprus and consequently to the property in question, has affected the rights of the applicant as property owner and in particular her right to peaceful enjoyment of her possessions, contrary to Article 1 of Protocol No. 1, thus constituting a continuing violation of the said Article.

92. The Commission recalls that it has declared inadmissible the applicant's complaint of a continuing violation of Article 1 of Protocol No. 1 alleged to have occurred before 29 January 1987.

93. The Commission notes that the applicant has since that date been prevented from gaining access to the north of Cyprus.

94. The Commission finds it established that this is due to the *120 presence of Turkish forces in Cyprus who exercise an overall control in the border area.

95. The Commission therefore finds that the refusal of access to property in the north of Cyprus, of which the applicant complains, is imputable to Turkey.

96. The Commission must consequently examine whether this complaint raises an issue under Article 1 of Protocol No. 1.

97. The Commission considers that a distinction must be made between claims concerning the peaceful enjoyment of one's possessions and claims of freedom of movement. It notes that 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.

98. 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. 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. [FN18]

FN18 cf., mutatis mutandis, Apps. Nos. 7671/76 etc., 15Foreign Students v. United Kingdom, Dec. 19.5.77, D.R. 9, p. 185 at pp. 186 ff.

99. The Commission therefore finds that the applicant's claim of free access to the north of Cyprus, which has been examined above [FN19] under Article 5 of the Convention, cannot be based on her alleged ownership of property in the northern part of the Island.

FN19 At paras. 81 et seq.

100. It follows that it discloses no issue under Article 1 of Protocol No. 1.

Conclusion

101. The Commission concludes by eight votes to five that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

E. Recapitulation

102. The Commission concludes unanimously that there has been no violation of Article 3of the Convention. [FN20]

FN20 Para. 65 above.

103. The Commission concludes by 11 votes to two that there has been no violation of Article 8 of the Convention, as regards the applicant's private life. [FN21]

FN21 Para. 72 above.

*121 104. The Commission concludes by nine votes to four that there has been no violation of Article 5(1) of the Convention. [FN22]

FN22 Para. 85 above.

105. The Commission concludes by nine votes to four that there has been no violation of Article 8 of the Convention, as regards the applicant's home. [FN23]

FN23 Para. 89 above.

106. The Commission concludes by eight votes to five that there has been no violation of Article 1 of Protocol No. 1 to the Convention. [FN24]

FN24 Para. 101 above.

Partly Concurring, Partly Dissenting Opinion of MM. Norgaard, Jörundsson,

Gözübüyük, Soyer and Danelius

In their declaration deposited on 28 January 1987, the Government of Turkey recognised the right of individual petition under Article 25 of the Convention, subject to certain conditions. One of these conditions was that the right of petition should extend only to allegations concerning acts and omissions of public authorities in Turkey performed within the boundaries of the territory to which the Constitution of Turkey is applicable. It is clear that this wording was intended to prevent petitions from being lodged in regard to events occuring in the northern part of Cyprus.

The question arises whether this territorial limitation in the Turkish declaration is legally valid. If it should be considered not to be valid, the further question arises as to whether this will affect the validity of the Turkish declaration as a whole.

We first note that, in accordance with a constant practice, a Contracting State is free to make a temporal limitation of its declaration under Article 25 of the Convention, in particular by excluding its application to acts which occurred before the declaration was made.

Moreover, under Article 63of the Convention, certain territorial limitations are also expressly provided for. However, Article 63 concerns territories for whose international relations a Contracting State is responsible, and the northern part of Cyprus cannot be regarded as such a territory. Nevertheless, Article 63 shows that, when making a declaration under Article 25, a Contracting State may, in some circumstances, make a distinction between different territories.

If a State may exclude the application of Article 25 to a territory referred to in Article 63, there would seem to be no specific reason why it should not be allowed to exclude the application of the right of individual petition to a territory having even looser constitutional ties with the State's main territory. If this was not permitted, the result might in some circumstances be that the State would refrain altogether from recognising the right of individual petition, which would not serve the cause of human rights.

*122 We consider that the territorial limitation in the Turkish declaration, in so far as it excludes the northern part of Cyprus, cannot be considered incompatible with the object and purpose of the Convention and that it should therefore be regarded as having legal effect.

In these circumstances, it is not necessary to examine what the legal consequences would have been if the territorial limitation had been held not to be legally valid.

It follows that in our view the Commission is not competent to deal with the applicant's complaints of violations of the Convention in Cyprus. For these reasons, we have voted against any finding of a violation of the Convention in the present case.

Partly Concurring, Partly Dissenting Opinion of Mr C.L. Rozakis

In my partially concurring and partially dissenting opinion to the opinion of the Commission in the cases of Metropolitan Chrysostomos and Archimandrite Papachrysostomou against Turkey, [FN25] I referred to a number of issues on which I disagree with the majority of the Commission. The approaches that I have expressed there remain the same, in so far as they are pertinent to the present case.

FN25 Apps. Nos. 15299/89 and 15300/89, Chrysostomos and Papachrysostomou v. Turkey, Dec. 4.3.91, D.R. 68, p. 216.

In the case of Titina Loizidou there is, however, one more element on which I disagree with the majority of the Commission: that of the access of the applicant to her property; mainly from the angle of the first Article of the First Protocol to the Convention. The applicant complains that "Turkey through the use of its armed forces and by the continued occupation and control of part of Cyprus and by prohibiting the applicant on a number of occasions from gaining access to the same part of Cyprus and consequently to the property in question, has affected the rights of the applicant as property owner"[peaceful enjoyment of her possessions]. [FN26]

FN26 Para. 91 of the Commission's Report.

The answer to the complaint of the applicant on the part of the Commission does not satisfy, in my view, her expectation for an overall determination of her case. The Commission contents itself with dealing with only one aspect of her complaints: in paragraphs 97, 98 and 99 it considers that what she asks is not actually a request for the enjoyment of her possessions--which comes under the protection of the First Protocol--but a request for moving freely in the occupied territory of Cyprus, where her possessions lie. And since the "right to peaceful enjoyment of one's possessions does not include, as a corollary the right to freedom of movement ... the applicant's claim of free access to the north of Cyprus cannot be based on her alleged ownership of property in the northern part of the island."

I think that the Commission interprets in a very narrow way the meaning of the word "access" to the applicant's property. Under the *123 influence of the previous cases [FN27] and because of the participation of the present applicant in the March manifestations, it considers that the notion of "access", as used by the applicant, is solely referring to a physical contact between the applicant and her possessions.

FN27 Apps. Nos. 15299/89 and 15300/89, loc. cit.

Yet, to my mind, the notion of "access", when referring to the enjoyment of possessions (and when referring to the very wording of the expressed complaint of our applicant) is a wider one than the mere freedom of movement which may allow the establishment of a physical contact. It actually covers all the elements constitutive of the right to enjoyment of possessions; i.e.the possibility to repair an immovable good; or the possibility to exploit usefully the possession; or the possibility to exchange a possession through the free acquisition of another one, etc. Under these circumstances, it becomes clear that the occupation by Turkey of the northern part of Cyprus actually prevents, in a continuing manner, the free enjoyment of possessions, the access to their many uses, and attributes, for the applicant.

I must also concede that even a narrow interpretation of the term "access" could not have led me so easily to the conclusion that no issue arises under the First Protocol to the Convention. There are circumstances where the absence of physical contact of a person with his or her possessions may amount to a deprivation of possessions; this is particularly true in cases where the use of a possession is the main constitutive element for the enjoyment of the possession; but also in other cases where the optimal exploitation of a possession requires physical presence of the person who owns it.

I then wonder whether, under the circumstances of the present case, when the applicant has for a long time been unable both to have any physical contact with her possessions and to freely make use of them, she cannot effectively claim to be a victim of continuous violation of her rights, under the Protocol. I conclude, in answering my own dilemma, that in either way I see a violation of Article 1 of the First Protocol .

Partly Dissenting Opinion of Mr M.P. Pellonpää

While I share the opinion of the majority of the Commission in other respects, I disagree in so far as concerns the complaints based on Article 5 of the Convention and Article 1 of Protocol No. 1.

The majority seem to consider that the applicant's right protected by Article 1 of Protocol No. 1 has been interfered with only "indirectly", and that therefore the case discloses no issue under Article 1 of Protocol No. 1. [FN28] This finding appears to be based on the view that the applicant in reality complains only about the lack of free access to her property, i.e., denial of freedom of movement.

FN28 Paras. 98, 100.

In agreement with what is said by Mr Rozakis in his Dissenting Opinion I consider this to be an unduly narrow construction of the *124 applicant's complaint made under Article 1 of Protocol No. 1. In her application form the applicant submitted that:

Turkey through the use of the T.M.F. and by the continued occupation and or control of the said part of Cyprus and by prohibiting the Applicant access to the said part of Cyprus and consequently to her property in question, has gradually and with the passing of time over the last 15 years, affected the rights of the Applicant as property owner and in particular her right to peaceful enjoyment of her possessions contrary to Article 1 of Protocol 1 of the Convention [FN29] thus constituting a continuing violation of the said Article.

FN29 See Sporrong and Lönnroth v. Sweden (A/52): (1983) 5 E.H.R.R. 35.

In her observations on the merits submitted in December 1992 the applicant specified that:

In the particular case of violations of Article 1 of Protocol 1of the Convention, the object of the Application is for the Applicant to be restored to the peaceful enjoyment of her possessions in the area occupied by Turkey and, in particular, her immovable property situated in Kyrenia. In addition the Applicant seeks compensation for the deprivation of the use and enjoyment of her property for the period between July 20, 1974 up to this day.

To me it is clear that the applicant's complaint is not limited to the access aspect but concerns an alleged denial of various aspects of the right guaranteed by Article 1 of Protocol No. 1.

Since 1974 all the essential elements of the applicant's rights as the owner of the property, including access to the property, have been interfered with. This interference was not for the purpose of controlling the use of the property within the meaning of the second paragraph of Article 1 of Protocol No. 1. Nor was the applicant's property formally expropriated before the acceptance by Turkey of the right of individual petition in such a way as to remove the interference from the Commission's competence ratione temporis. According to the respondent Government, "the question of Greek properties in the north and Turkish Cypriot properties in the south is a matter of discussion within the framework of the intercommunal talks" (para. 30 of the Commission's report). Thus the unsettled nature of the property issue--and the continuing nature of the interference--is conceded by the Government.

Under these circumstances the denial of access to the property and denial of its enjoyment amount to a continuing violation of Article 1 of Protocol No. 1. [FN30] This violation is attributable to Turkey, as there are no circumstances which would break the chain of causation between the original interference by Turkey and the present situation. I refer to the considerations put forward in my Partly Concurring, Partly Dissenting Opinion in Chrysostomos and Papachrysostomou v. Turkey . [FN31]

FN30 See, mutatis mutandis, Papamichalopoulos v. Greece (A/260-B): (1993) 16 E.H.R.R. 440 *125 .

FN31 Loc. cit.

I also consider that Article 5of the Convention has been violated. I doubt whether the arrest and detention on the basis of the rules relied on in the main opinion of the Commission fulfilled the requirement of foreseeability and therefore took place "in accordance with a procedure prescribed by law". In all the circumstances of the case, including the length of the deprivation of liberty, I conclude that the applicant's "right to liberty and security of person", guaranteed by paragraph 1 of Article 5, was violated.

JUDGMENT

I. The standing of the Applicant Government

39. Throughout the proceedings the Turkish Government systematically referred to the applicant Government as the "Greek Cypriot administration". They indicated, without developing any arguments on this point, that they did not accept the capacity of the applicant Government to represent the people of Cyprus and that their appearance before the Court in the present case should not be understood as amounting to any form of recognition of that Government.

40. The Court confines itself to noting, with reference inter alia to the consistent practice of the Council of Europe and the decisions of the Commission in the inter-State cases of Cyprus v. Turkey,that the applicant Government have been recognised by the international community as the Government of the Republic of Cyprus. [FN32]Its locus standi as the Government of a High Contracting Party to the Convention cannot therefore be in doubt. Moreover it has not been contested that the applicant is a national of the Republic of Cyprus.

FN32 See in this connection, Apps. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2, p. 125 at pp. 135-136; 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13, p. 85, at p. 146.

41. In any event recognition of an applicant Government by a respondent Government is not a precondition for either the institution of proceedings under Article 24of the Convention or the referral of cases to the Court under Article 48. [FN33]If it were otherwise, the system of collective enforcement which is a central element in the Convention system could be effectively neutralised by the interplay of recognition between individual Governments and States.

FN33 See App. No. 8007/77, loc. cit., pp. 147-148.

II. Alleged abuse of process

42. The Turkish Government submitted that the overriding aim of the application was political propaganda. The decision of the applicant Government to bring the case before the Court was not, in fact, made in order to complain of the alleged violations of the applicant's rights but rather to stimulate a debate before the Court on the status of the "Turkish Republic of Northern Cyprus" (the "TRNC"). Such an approach amounted to an abuse of process. The complaints therefore *126 fell outside the Court's competence since they seek to pervert the character of the judicial control procedure.

43. The applicant Government and the Commission took issue with this submission. The Government of Cyprus argued inter alia that the applicant's case is one of thousands of instances of displaced persons who have been deprived of their property because of the illegal Turkish occupation of northern Cyprus. Moreover, it was only natural that the Government of Cyprus should be interested in the fate of their citizens. The applicant, for her part, considered that the claim lacked the status of a preliminary objection.

44. The Court observes that this objection was not raised in the proceedings before the Commission. Accordingly the Turkish Government is estopped from raising it before the Court in so far as it applies to Mrs Loizidou.

45. In so far as it is directed to the applicant Government, the Court notes that this Government have referred the case to the Court inter alia because of their concern for the rights of the applicant and other citizens in the same situation. The Court does not consider such motivation to be an abuse of its procedures.

It follows that this objection must be rejected.

46. In the light of this conclusion it leaves open the question whether it could refuse jurisdiction in an application by a State under Article 48(b) on the grounds of its allegedly abusive character.

III. The Turkish Government's role in the proceedings

47. The Turkish Government submitted that, in essence, the present case did not concern the acts or omissions of Turkey but those of the "TRNC" which they claimed to be an independent State established in the north of Cyprus. As the only Contracting Party to have recognised the "TRNC" , with whose authorities it has close and friendly relations, its role before the Court was limited to that of an amicus curiae since the "TRNC" was not itself able to be a "party" to the present proceedings.

48. For the applicant Government, it was not open to Turkey under the Rules of Court to change its status in this way and to appear on behalf of an illegal regime which had been established in defiance of international law and which has not been recognised by the international community.

49. The applicant for her part considered that the Turkish Government's position amounted, in effect, to an objection ratione loci.

50. The Commission maintained that Turkey appeared not as an amicus curiaebut as a High Contracting Party to the Convention.

51. The Court does not consider that it lies within the discretion of a Contracting Party to the Convention to characterise its standing in the proceedings before the Court in the manner it sees fit. It observes that the case originates in a petition made under Article 25, brought by the *127 applicant against Turkey in her capacity as a High Contracting Party to the Convention and has been referred to the Court under Article 48(b) by another High Contracting Party.

52. The Court therefore considers--without prejudging the remainder of the issues in these proceedings--that Turkey is the respondent Party in this case.

IV. Scope of the case

53. Before the Commission the applicant complained that her right to the peaceful enjoyment of her possessions had been affected as a result of the continued occupation and control of the northern part of Cyprus by Turkish armed forces which have on several occasions prevented her from gaining access to her home and other properties there. She submitted that this state of affairs constituted a continuing violation of her property rights contrary to Article 1 of Protocol No. 1 to the Convention as well as a continuing violation of her right to respect for her home contrary to Article 8 of the Convention. She further alleged violations of Articles 3, 5(1) and 8 of the Convention arising out of her arrrest and detention. [FN34]

FN34 See para. 34 above.

54. In the application referring the present case to the Court under Article 48(b) of the Convention the applicant Government have confined themselves to seeking a ruling on the complaints under Article 1 of Protocol No. 1 and Article 8, in so far as they have been declared admissible by the Commission, [FN35] concerning access to the applicant's property. Accordingly, as is undisputed, it is only these complaints which are before the Court. The remaining part of the case concerning the applicant's arrest and detention thus falls within the competence of the Committee of Ministers of the Council of Europe in accordance with Article 32(1) of the Convention.

FN35 See para. 35 above.

The Court notes that the issue whether the Convention and the Rules of Court permit a partial referral under Article 48, as in the present case, has not been called into question by those appearing before the Court. Indeed, Turkey ("the respondent Government" ) has accepted that the scope of the case be confined in this way. In these circumstances the Court does not find it necessary to give a general ruling on the question whether it is permissible to limit a referral to the Court to some of the issues on which the Commission has stated its opinion.

V. Objections ratione loci

55. The respondent Government have filed two preliminary objections ratione loci. In the first place they claimed that the Court lacks competence to consider the merits of the case on the grounds that the matters complained of did not fall within Turkish jurisdiction but within that of the "TRNC" . In the second place they contended that, in *128 accordance with their declarations under Articles 25 and 46of the Convention, [FN36]they had not accepted either the competence of the Commission or the Court to examine acts and events outside their metropolitan territory.

FN36 See paras. 3, 15 and 27 above.

The Court will examine each of these objections in turn.

A. Whether the facts alleged by the applicant are capable of falling within the jurisdiction of Turkey under Article 1 of the Convention

1. Submissions of those appearing before the Court

56. The respondent Government first pointed out that the question of access to property was obviously outside the realm of Turkey's "jurisdiction". This could be seen from the fact that it formed one of the core items in the inter- communal talks between the Greek-Cypriot and Turkish-Cypriot communities.

Furthermore the mere presence of Turkish armed forces in northern Cyprus was not synonymous with "jurisdiction" any more than it is with the armed forces of other countries stationed abroad. In fact Turkish armed forces had never exercised "jurisdiction" over life and property in northern Cyprus. Undoubtedly it was for this reason that the findings of the Commission in the inter-State cases of Cyprus v. Turkey [FN37]had not been endorsed by the Committee of Ministers whose stand was in line with the realities of the situation prevailing in Cyprus following the intervention of Turkey as one of the three guarantor powers of the Republic of Cyprus.

FN37 Apps. Nos. 6780/74, 6950/75 and 8007/77, loc. cit.

Nor did Turkey exercise overall control of the border areas as found by the Commission in its admissibility decision in the present case. She shares control with the authorities of the "TRNC" and when her armed forces act alone they do so on behalf of the "TRNC" which does not dispose of sufficient forces of its own. The fact that the Turkish armed forces operate within the command structure of the Turkish army does not alter this position.

According to the respondent Government, far from being a "puppet" State as alleged by the applicant, the "TRNC" is a democratic constitutional State with impeccable democratic features and credentials. Basic rights are effectively guaranteed and there are free elections. It followed that the exercise of public authority in the "TRNC"was not imputable to Turkey. The fact that this State has not been recognised by the international community was not of any relevance in this context.

57. The applicant, whose submissions were endorsed by the Government of Cyprus, contended that the question of responsibility in this case for violations of the Convention must be examined with reference to the relevant principles of international law. In this respect *129 the Commission's approach which focused on the direct involvement of Turkish officials in violations of the Convention was not, under international law, the correct one. A State is, in principle, internationally accountable for violations of rights occurring in territories over which it has physical control.

According to the applicant, international law recognises that a State which is thus accountable with respect to a certain territory remains so even if the territory is administered by a local administration. This is so whether the local administration is illegal, in that it is the consequence of an illegal use of force, or whether it is lawful, as in the case of a protected State or other political dependency. A State cannot avoid legal responsibility for its illegal acts of invasion and military occupation, and for subsequent developments, by setting up or permitting the creation of forms of local administration, however designated. Thus the controlling powers in the "puppet" States that were set up in Manchukuo, Croatia and Slovakia during the period 1939-1945 were not regarded as absolved from reponsibilities for breaches of international law in these administrations. [FN38]In the same vein, the international accountability of the protecting or ultimate sovereign remains in place even when a legitimate political dependency is created. This responsibility of the State in respect of protectorates and autonomous regions is affirmed by the writings of authoritative legal publicists. [FN39]

FN38 Whiteman, Digest of International Law, (1967) Vol. 8, pp. 835-837.

FN39 Rousseau, Droit international public, Vol. V, 1983, p. 31 (para. 28); Reuter, Droit international public (6th ed., 1983), p. 262; Répertoire suisse de droit international public, 1975, vol. III, pp. 1722-3; Verzijl, International Law in Historical Perspective, 1973, Vol. IV, pp. 710-11.

The applicant further submitted that in the present case to apply a criterion of responsibility which required the direct intervention of Turkish military personnel in respect of each prima facieviolation of the Convention in northern Cyprus would be wholly at variance with the normal mode of applying the principles of State responsibility set out above. To require applicants to fulfil such a standard at the merits stage would be wholly unrealistic and would also involve a de factoamnesty and a denial of justice.

Finally, if Turkey was not to be held responsible for conditions in northern Cyprus, no other legal person can be held responsible. However the principle of the effective protection of Convention rights recognised in the case law of the Court requires that there be no lacuna in the system of responsibility. The principles of the Convention system and the international law of State responsibility thus converge to produce a regime under which Turkey is responsible for controlling events in northern Cyprus.

58. On this issue the Commission was of the opinion that the applicant had been prevented from gaining access to her property due to the presence of Turkish armed forces in the northern part of Cyprus *130 which exercise an overall control in the border area. This refusal of access was thus imputable to Turkey.

2. The Court's examination of the issue

59. Article 1of the Convention reads as follows:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of [the] Convention.

60. The question before the Court is whether its competence to examine the applicant's complaints is excluded on the grounds that they concern matters which cannot fall within the "jurisdiction" of the respondent Government.

61. The Court would emphasise that it is not called upon at the preliminary objections stage of its procedure to examine whether Turkey is actually responsible under the Convention for the acts which form the basis of the applicant's complaints. Nor is it called upon to establish the principles that govern State responsibility under the Convention in a situation like that obtaining in the northern part of Cyprus. Such questions belong rather to the merits phase of the Court's procedure. The Court's inquiry is limited to determining whether the matters complained of by the applicant are capable of falling within the "jurisdiction" of Turkey even though they occur outside her national territory.

62. In this respect the Court recalls that, although Article 1 sets limits on the reach of the Convention, the concept of "jurisdiction"under this provision is not restricted to the national territory of the High Contracting Parties. According to its established case law, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention. [FN40] In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory. [FN41]

FN40 See Soering v. United Kingdom (A/161) , loc. cit., para. 91; Cruz Varas v. Sweden (A/201): (1992) 14 E.H.R.R. 1, paras. 69 and 70; Vilvarajah v. United Kingdom (A/215): (1992) 14 E.H.R.R. 248, para. 103.

FN41 Drozd and Janousek v. France and Spain (A/240): (1992) 14 E.H.R.R. 745, para. 91.

Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action--whether lawful or unlawful--it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.

*131 63. In this connection the respondent Government have acknowledged that the applicant's loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the "TRNC" . Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property.

64. It follows that such acts are capable of falling within Turkish "jurisdiction" within the meaning of Article 1 of the Convention. Whether the matters complained of are imputable to Turkey and give rise to State responsibility are thus questions which fall to be determined by the Court at the merits phase.

B. The validity of the territorial restrictions attached to Turkey's Article 25 and 46 declarations

65. The relevant provisions of Article 25 of the Convention read as follows:

1. The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.

2. Such declarations may be made for a specific period.

...

66. Article 46of the Convention states:

1. Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and without special agreement the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention.

2. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain other High Contracting Parties or for a specified period.

3. These declarations shall be deposited with the Secretary General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties.

67. The respondent Government submitted that the relevant territorial and other restrictions contained in the Article 25 and 46 declarations of 28 January 1987 and 22 January 1990 [FN42]respectively, are legally valid and bind the Convention institutions. The system set up under Articles 25 and 46 is an optional one into which Contracting States may, or may not, "contract-in". There is no indication that the Contracting Parties agreed when the Convention was being drafted that a partial recognition of the competence of the Commission and Court was impermissible. If they had meant to prohibit restrictions in Article 25 and 46 declarations they would have included a special *132 provision to this effect as is common in the treaty practice of the Council of Europe.

FN42 As renewed on 22 January 1993.

In fact the Convention system has multiple clauses, such as Articles 63 and 64, Article 6(2) of Protocol No. 4 and Article 7(2) of Protocol No. 7, which provide the basis for "à la carte" undertakings by the Contracting Parties. Moreover, other States have attached substantive restrictions to their instruments of acceptance such as the United Kingdom [FN43]--in this case a territorial restriction--and Cyprus. [FN44]

FN43 See para. 33 above.

FN44 See paras. 30 and 32 above.

The respondent Government also referred to the established practice under Article 36 of the Statute of the International Court of Justiceto permit the attachment of substantive, territorial and temporal restrictions to the optional recognition of the Court's jurisdictional competence. The wording in Article 36(3) of the Statute is, in all material respects, the same as that used in Articles 25 and 46 of the Convention. In this connection, the drafting history of the Convention reveals that Article 36 of the Statute served as a model for Article 46 of the Convention. It is a well established principle in international treaty law that an expression used in one treaty will bear the same meaning if used in another.

In the respondent Government's further submission, Articles 25 and 46 must be interpreted with reference to their meaning when the Convention was being drafted. This principle of contemporaneous meaning is part of the "good faith" interpretation embodied in Article 31 of the Vienna Convention on the Law of Treaties. At this time, international judicial practice permitted the addition of conditions or restrictions to any optional recognition of the jurisdiction of an international tribunal. The fact that the drafters of the Convention did not choose to use different words indicates that they intended to give States the same freedom to attach restrictions to their declarations as is enjoyed under Article 36 of the Statute of the International Court of Justice.

Finally, with regard to subsequent treaty practice, while there have been statements opposing the Turkish interpretation of Articles 25 and 46, it has not been established that there is a practice reflecting an agreement among all Contracting Parties concerning the attachment of conditions to these instruments of acceptance.

68. For the applicant and the Government of Cyprus, when States make declarations under Articles 25 and 46 recognising the competence of the Commission and Court, the only conditions permitted are those ratione temporis. In reality, the territorial restriction in the Turkish declarations is tantamount to a disguised reservation.

Furthermore, the long-established practice of the International Court of Justice in accepting restrictions on the jurisdiction of the Court under Article 36 of the Statute affords no assistance in the *133 present case because of the substantial differences between the two systems. The International Court of Justice is a free-standing international tribunal which has no links to a standard-setting treaty such as the Convention.

69. The Commission, with reference to its admissibility decision in the present case, also considered that the restrictions attaching to the Turkish Article 25 declaration were invalid with the exception of the temporal restriction. It expressed the same view as regards the territorial restriction contained in the Article 46 declaration.

70. The Court observes that Articles 25 and 46 of the Convention are provisions which are essential to the effectiveness of the Convention system since they delineate the responsibility of the Commission and Court "to ensure the observance of the engagements undertaken by the High Contracting Parties", [FN45] by determining their competence to examine complaints concerning alleged violations of the rights and freedoms set out in the Convention. In interpreting these key provisions it must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms.

FN45 Art. 19.

As was observed in the Court's Ireland v. United Kingdom judgment of 15 January 1978 [FN46]

Unlike international treaties of the classical kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates over and above a network of mutual bilateral undertakings, objective obligations which in the words of the preamble benefit from a "collective enforcement".

FN46 (A/25): (1979-80) 2 E.H.R.R. 25, para. 239.

71. That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court's case law. [FN47] Such an approach, in the Court's view, is not confined to the substantive provisions of the Convention, but also applies to those provisions, such as Articles 25 and 46, which govern the operation of the Convention's enforcement machinery. It follows that these provisions cannot be interpreted solely in accordance with the intentions of their authors as expressed more than 40 years ago.

FN47 See, inter alia, Tyrer v. United Kingdom (A/26): (1979-80) 2 E.H.R.R. 1, para. 31.

Accordingly, even if it had been established, which is not the case, that restrictions, other than those ratione temporis , were considered permissible under Articles 25 and 46 at a time when a minority of the present Contracting Parties adopted the Convention, such evidence could not be decisive.

72. In addition, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. [FN48]

FN48 See, inter alia, Soering v. United Kingdom, *134 loc. cit.,para. 87, and Artico v. Italy (A/37): (1981) 3 E.H.R.R. 1, para. 33.

73. To determine whether Contracting Parties may impose restrictions on their acceptance of the competence of the Commission and Court under Articles 25 and 46, the Court will seek to ascertain the ordinary meaning to be given to the terms of these provisions in their context and in the light of their object and purpose. [FN49] It shall also take into account, together with the context, "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". [FN50]

FN49 See, inter alia, Johnston v. Ireland (A/112) : (1987) 9 E.H.R.R. 203, para. 51, and Art. 31(1) of the Vienna Convention of 23 May 1969 on the Law of Treaties .

FN50 See Article 31(3)(b) of the Vienna Convention.

74. Both Article 25(2) and Article 46(2) of the Convention explicitly permit the respective declarations to be made for a specified period. These provisions have been consistently understood as permitting Contracting Parties also to limit the retrospective application of their acceptance of the competence of the Commission and the Court. [FN51] This point has not been disputed.

FN51 See, inter alia, Stamoulakatos v. Greece(A/271): (1994) 17 E.H.R.R. 479, para. 32.

75. Article 25contains no express provision for other forms of restrictions. [FN52] In addition, Article 46(2) provides that declarations "may be made unconditionally or on condition of reciprocity ...". [FN53]

FN52 See para. 65 above.

FN53 See para. 66 above.

If, as contended by the respondent Government, substantive or territorial restrictions were permissible under these provisions, Contracting Parties would be free to subscribe to separate regimes of enforcement of Convention obligations depending on the scope of their acceptances. Such a system, which would enable States to qualify their consent under the optional clauses, would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of European public order ("ordre public"). Moreover, where the Convention permits States to limit their acceptance under Article 25, there is an express stipulation to this effect. [FN54]

FN54 See, in this regard, Art. 6(2) of Protocol No. 4 and Art. 7(2) of Protocol No. 7.

In the Court's view, having regard to the object and purpose of the Convention system as set out above, the consequences for the enforcement of the Convention and the achievement of its aims would be so far-reaching that a power to this effect should have been expressly provided for. However no such provision exists in either Article 25 or Article 46.

76. The Court further notes that Article 64 of the Convention enables States to enter reservations when signing the Convention or when depositing their instruments of ratification. The power to make reservations under Article 64 is, however, a limited one, being confined to particular provisions of the Convention "to the extent that any law then in force in [the] territory [of the relevant Contracting Party] is not *135 in conformity with the provision" . In addition reservations of a general nature are prohibited.

77. In the Court's view, the existence of such a restrictive clause governing reservations suggests that States could not qualify their acceptance of the optional clauses thereby effectively excluding areas of their law and practice within their "jurisdiction" from supervision by the Convention institutions. The inequality between Contracting States which the permissibility of such qualified acceptances might create would, moreover, run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights.

78. The above considerations in themselves strongly support the view that such restrictions are not permitted under the Convention system.

79. This approach is confirmed by the subsequent practice of Contracting Parties under these provisions. Since the entry into force of the Convention until the present day, almost all of the 30 parties to the Convention, apart from the respondent Government, have accepted the competence of the Commission and Court to examine complaints without restrictions ratione loci or ratione materiae . The only exceptions to such a consistent practice appear in the restrictions attached to the Cypriot declaration under Article 25 [FN55] which have now been withdrawn [FN56] and--as is claimed by the respondent Government--the United Kingdom Article 25 declaration. [FN57]

FN55 See paras. 30 and 32 above.

FN56 See para. 32 above.

FN57 See para. 33 above.

80. In this respect, the Commission suggested that the restriction was formulated by the United Kingdom, in the light of Article 63(4) of the Convention, in order to exclude the competence of the Commission to examine petitions concerning its non-metropolitan territories. In the present context the Court is not called upon to interpret the exact scope of this declaration which has been invoked by the respondent Government as an example of a territorial restriction. Whatever its meaning, this declaration and that of Cyprus do not disturb the evidence of a practice denoting practically universal agreement amongst Contracting Parties that Articles 25 and 46 of the Convention do not permit territorial or substantive restrictions.

81. The evidence of such a practice is further supported by the reactions of the Governments of Sweden, Luxembourg, Denmark, Norway and Belgium, as well as the Secretary General of the Council of Europe as depositary, which reserved their positions as regards the legal questions arising as to the scope of Turkey's first Article 25 declaration [FN58]and the Government of Greece which considered the *136 restrictions to Turkey's declarations under Articles 25 and 46 to be null and void. [FN59]

FN58 See paras. 18-24 above.

FN59 See para. 18 above.

82. The existence of such a uniform and consistent State practice clearly rebuts the respondent Government's arguments that restrictions attaching to Article 25 and Article 46 declarations must have been envisaged by the drafters of the Convention in the light of practice under Article 36 of the Statute of the International Court of Justice.

83. In this connection, it is not disputed that States can attach restrictions to their acceptance of the optional jurisdiction of the International Court. Nor has it been contested that Article 46 of the Convention was modelled on Article 36 of the Statute. However, in the Court's view, it does not follow that such restrictions to the acceptance of jurisdiction of the Commission and Court must also be permissible under the Convention.

84. In the first place, the context within which the International Court of Justice operates is quite distinct from that of the Convention institutions. The International Court is called on inter alia to examine any legal dispute between States that might occur in any part of the globe with reference to principles of international law. The subject matter of a dispute may relate to any area of international law. In the second place, unlike the Convention institutions, the role of the International Court is not exclusively limited to direct supervisory functions in respect of a law-making treaty such as the Convention.

85. Such a fundamental difference in the role and purpose of the respective tribunals, coupled with the existence of a practice of unconditional acceptance under Articles 25 and 46, provides a compelling basis for distinguishing Convention practice from that of the International Court.

86. Finally, although the argument has not been elaborated on by the respondent Government, the Court does not consider that the application of Articles 63(4) , by analogy, provides support for the claim that a territorial restriction is permissible under Articles 25 and 46.

According to this argument, Article 25 could not apply beyond national boundaries to territories, other than those envisaged by Article 63, unless the State specifically extended it to such territories. As a corollary, the State can limit acceptance of the right of individual petition to its national territory--as has been done in the instant case.

87. The Court first recalls that in accordance with the concept of "jurisdiction" in Article 1 of the Convention, State responsibility may arise in respect of acts and events outside State frontiers. [FN60] It follows that there can be no requirement, as under Article 63(4) in respect of the overseas territories referred to in that provision, that the Article 25 *137 acceptance be expressly extended before responsibility can be incurred.

FN60 See para. 62 above.

88. In addition, regard must be had to the fact that the object and purpose of Article 25 and Article 63 are different. Article 63 concerns a decision by a Contracting Party to assume full responsibility under the Convention for all acts of public authorities in respect of a territory for whose international relations it is responsible. Article 25, on the other hand, concerns an acceptance by a Contracting Party of the competence of the Commission to examine complaints relating to the acts of its own officials acting under its direct authority. Given the fundamentally different nature of these provisions, the fact that a special declaration must be made under Article 63(4) accepting the competence of the Commission to receive petitions in respect of such territories, can have no bearing, in the light of the arguments developed above, on the validity of restrictions ratione loci in Article 25 and 46 declarations.

89. Taking into consideration the character of the Convention, the ordinary meaning of Articles 25 and 46 in their context and in the light of their object and purpose and the practice of Contracting Parties, the Court concludes that the restrictions ratione loci attached to Turkey's Article 25 and Article 46 declarations are invalid.

It remains to be examined whether, as a consequence of this finding, the validity of the acceptances themselves may be called into question.

C. Validity of the Turkish declarations under Articles 25 and 46

90. The respondent Government submitted that if the restrictions attached to the Article 25 and 46 declarations were not recognised to be valid, as a whole, the declarations were to be considered null and void in their entirety. It would then be for the Turkish Government to draw the political conclusions from such a situation.

In this connection, the Turkish Delegate at the session of the Committee of Ministers of the Council of Europe in March 1987 had underlined that the conditions built into Turkey's Article 25 declaration were so essential that disregarding any of them would make the entire declaration void with the consequence that Turkey's acceptance of the right of individual petition would lapse. This position, it was argued, was equally valid for Turkey's Article 46 declaration.

It was further submitted that in accordance with Article 44(3) (a) and (b) of the Vienna Convention on the Law of Treaties the burden fell on the applicants to show that the restrictions, in particular the territorial restrictions, were not an essential basis for Turkey's willingness to make the declarations.

91. For the applicant, with whom the Government of Cyprus agreed, the respondent Government, in drafting the terms of these declarations, had taken the risk that the restrictions would be declared *138 invalid. It should not now seek to impose the legal consequences of this risk on the Convention institutions.

92. The Commission considered that it was Turkey's main intention when she made her Article 25 declaration on 28 January 1987 to accept the right of individual petition. It was this intention that must prevail. In addition, before the Court the Delegate of the Commission pointed out that the respondent Government had not sought to argue the invalidity of their acceptance of the right of individual petition in cases which had come before the Commission subsequent to the present case.

93. In addressing this issue the Court must bear in mind the special character of the Convention as an instrument of European public order ("ordre public") for the protection of individual human beings and its mission, as set out in Article 19, "to ensure the observance of the engagements undertaken by the High Contracting Parties".

94. It also recalls the finding in its Belilos v. Switzerland judgment of 29 April 1988, after having struck down an interpretative declaration on the grounds that it did not conform to Article 64, that Switzerland was still bound by the Convention notwithstanding the invalidity of the declaration. [FN61]

FN61 (A/132): (1988) 10 E.H.R.R. 466, para. 60.

95. The Court does not consider that the issue of the severability of the invalid parts of Turkey's declarations can be decided by reference to the statements of her representatives expressed subsequent to the filing of the declarations either [FN62]before the Committee of Ministers and the Commission or [FN63] in the hearing before the Court. In this connection, it observes that the respondent Government must have been aware, in view of the consistent practice of Contracting Parties under Articles 25 and 46 to accept unconditionally the competence of the Commission and Court, that the impugned restrictive clauses were of questionable validity under the Convention system and might be deemed impermissible by the Convention organs.

FN62 As regards the declaration under Art. 25.

FN63 As regards both Arts. 25 and 46.

It is of relevance to note, in this context, that the Commission had already expressed the opinion to the Court in its pleadings in the Belgian Linguistics (Preliminary objection) and Kjeldsen, Busk Madsen and Pedersen v. Denmark cases [FN64]that Article 46 did not permit any restrictions in respect of recognition of the Court's jurisdiction. [FN65]

FN64 (A/5): 1 E.H.R.R. 241, and (A/23): 1 E.H.R.R. 711 respectively.

FN65 See, respectively, the second memorial of the Commission of 14 July 1966, Series B no. 1, p. 432, and the memorial of the Commission (preliminary objections) of 26 January 1976, Series B no. 21, p. 119.

The subsequent reaction of various Contracting Parties to the Turkish declarations [FN66]lends convincing support to the above observation concerning Turkey's awareness of the legal position. That *139 she, against this background, subsequently filed declarations under both Articles 25 and 46-- the latter subsequent to the statements by the Contracting Parties referred to above--indicates a willingness on her part to run the risk that the limitation clauses at issue would be declared invalid by the Convention institutions without affecting the validity of the declarations themselves. Seen in this light, the ex post facto statements by Turkish representatives cannot be relied upon to detract from the respondent Government's basic--albeit qualified-- intention to accept the competence of the Commission and Court.

FN66 See paras. 18-24 above.

96. It thus falls to the Court, in the exercise of its responsibilities under Article 19, to decide this issue with reference to the texts of the respective declarations and the special character of the Convention regime. The latter, it must be said, militates in favour of the severance of the impugned clauses since it is by this technique that the rights and freedoms set out in the Convention may be ensured in all areas falling within Turkey's "jurisdiction" within the meaning of Article 1 of the Convention.

97. The Court has examined the text of the declarations and the wording of the restrictions with a view to determining whether the impugned restrictions can be severed from the instruments of acceptance or whether they form an integral and inseparable part of them. Even considering the texts of the Article 25 and 46 declarations taken together, it considers that the impugned restrictions can be separated from the remainder of the text leaving intact the acceptance of the optional clauses.

98. It follows that the declarations of 28 January 1987 and 22 January 1990 under Articles 25 and 46 contain valid acceptances of the competence of the Commission and Court.

VI. Objection ratione temporis

99. The respondent Government recalled that it has only accepted the jurisdiction of the Court in respect of facts or events occurring after 22 January 1990--the date of deposit of the instrument. [FN67]They pointed out that the Commission has made a clear distinction between instantaneous acts, even if they have enduring effects and continuing violations of Convention rights. [FN68] It has also found that the action by which a person is deprived of his property does not result in a continuing situation of absence of property. [FN69] However, the deprivation of property of which the applicant complains is the direct result of an instantaneous act, pursuant to the Turkish intervention in 1974, which occurred prior to the acceptance of the Court's jurisdiction.

FN67 See para. 27 above.

FN68 Apps. Nos. 7379/76, X. v. United Kingdom, Dec. 10.12.76, D.R. 8, pp. 211-213, and 7317/75, Lynas v. Switzerland, Dec. 6.10.76, D.R. 6, pp. 155- 169.

FN69 App. No. 7379/76, loc. cit.

According to the respondent Government, it follows from the above *140 that the Court is incompetent ratione temporis since the alleged violation results from an instantaneous action which occurred prior to Turkey's acceptance of the optional clauses.

100. The applicant, the Government of Cyprus and the Commission maintained that the applicant's complaints concern continuing violations of Article 1 of Protocol No. 1 on the ground that she has been and continues to be prevented by Turkey from using and enjoying her property in the occupied part of Cyprus. She referred in this respect to the Court's Papamichalopoulos and Others v. Greece judgment of 24 June 1993where it was held that a de facto expropriation of land amounted to a continuing violation of Article 1 of Protocol No. 1. [FN70]

FN70 Loc. cit., paras. 45-46.

The applicant further submitted that the relevant date for the determination of the Court's jurisdiction was 27 January 1987--the date of the Turkish declaration recognising the competence of the Commission--rather than 22 January 1990. She maintained that the case brought before the Court was that based upon the original application. It would be anomalous if the Turkish Article 46 declaration, which accepted the jurisdiction of the Court only in respect of facts which have occurred subsequent to the deposit of the declaration, [FN71] could frustrate the Court's examination of matters which had been properly referred to it under Article 48. Such a result would be incompatible with Articles 45 and 48 and would in general conflict with the procedural order created by the Convention. It would also deprive the applicant of a remedy in respect of an additional three years of deprivation of her rights.

FN71 See para. 27 above.

101. The Commission disagreed on this point. It considered the critical date to be 22 January 1990 when Turkey recognised the jurisdiction of the Court.

102. The Court recalls that it is open to Contracting Parties under Article 46 of the Convention to limit, as Turkey has done in her declaration of 22 January 1990, the acceptance of the jurisdiction of the Court to matters which occur subsequent to the time of deposit. [FN72]It follows that the Court's jurisdiction extends only to the applicant's allegations of a continuing violation of her property rights subsequent to 22 January 1990. The different temporal competence of the Commission and Court in respect of the same complaint is a direct and foreseeable consequence of separate Convention provisions providing for recognition of the right of individual petition [FN73] and the jurisdiction of the Court. [FN74]

FN72 ibid.

FN73 Art. 25.

FN74 Art. 46.

103. The correct interpretation and application of the restrictions ratione temporis, in the Turkish declarations under Articles 25 and 46 *141 of the Convention, and the notion of continuing violations of the Convention, raise difficult legal and factual questions.

104. The Court considers that on the present state of the file it has not sufficient elements enabling it to decide these questions. Moreover, they are so closely connected to the merits of the case that they should not be decided at the present phase of the procedure.

105. It therefore decides to join this objection to the merits of the case.

For these reasons, THE COURT

1. Dismisses unanimously the preliminary objection concerning an alleged abuse of process;

2. Holds by 16 votes to two that the facts alleged by the applicant are capable of falling within Turkish "jurisdiction" within the meaning of Article 1of the Convention;

3. Holds by 16 votes to two that the territorial restrictions attached to Turkey's Article 25 and 46 declarations under the Convention are invalid but that the Turkish declarations under Articles 25 and 46 contain valid acceptances of the competence of the Commission and Court;

4. Joins unanimously to the merits the preliminary objection ratione temporis.

In accordance with Article 51(2) of the Convention and Rule 53(2) of the Rules of Court A , the joint dissenting opinion of Mr Gölcücklü and Mr Pettiti and two separate dissenting opinions by them are annexed to this judgment.

Joint Dissenting Opinion of Mr Gölcüklü and Mr Pettiti

We voted with the majority as regards point 1 of the judgment's operative provisions, concerning the rejection of the preliminary objection in which an abuse of process was alleged, and point 4, concerning joinder to the merits of the preliminary objection ratione temporis. We were in the minority as regards points 2 and 3, taking the view, essentially, that the Court could not rule on the issue under Article 1 of the Convention raised in the Turkish Government's preliminary objection ("everyone within their jurisdiction" ) without examining the de jure and de facto situation in northern Cyprus as to the merits. We consider that the Court was not yet in possession of all the information it needed in order to assess the administration of justice, the nature and organisation of the courts and the question who had "jurisdiction" under the rules of international law in northern Cyprus and the Green Zone where the United Nations forces operated.

In the first sub-paragraph of paragraph 62 of the judgment the Court holds:

In this respect the Court recalls that, although Article 1 sets limits on the *142 reach of the Convention, the concept of "jurisdiction" under this provision is not restricted to the national territory of the High Contracting Parties. According to its established caselaw, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention. [FN75] In addition, the responsibility of Contracting Parties can be invoked because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory. [FN76]

FN75 See n. 39 above.

FN76 See n. 40 above.

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 Spainjudgment cited in paragraph 62 the Court eventually found that there had been no violation.

While the responsibility of a Contracting Party may be engaged as a consequence of military action outside its territory, this does not imply exercise of its jurisdiction. The finding in paragraph 64 does not refer to any criterion for deciding the question of jurisdiction. In our opinion, therefore, there is a contradiction between what the Court says in paragraph 62 and its conclusion in paragraph 64, and this contradiction reappears in the vote on point 2 of the operative provisions. The Court should have looked into the merits of the question who did or did not have jurisdiction before ruling on the objection.

With regard to the validity of the Turkish Government's declaration

The Court concludes in paragraph 89, on the basis of the considerations set out in paragraphs 77 to 88, that the restrictions ratione loci are invalid, while holding that Turkey is bound by the declaration.

Such an approach raises the question whether the Convention institutions are empowered to sever the terms of a declaration by a High Contracting Party by declaring them invalid in part. We consider that, regard being had to the circumstances in which the Turkish declaration was made, its terms cannot be severed in this way as the case stands at present, since this would mean ignoring the scope of the undertaking entered into by a State.

From the point of view of the State concerned this is a manifestation of its intention, for both public and private law purposes, which fixes the limits of its accession and consent, in a form of words which it considers indivisible. The declaration may be declared invalid, but not split into sections, if it is the State's intention that it should form a whole. It was up to the political organs and the Member States to negotiate and decide matters otherwise.

Only five States reserved their positions with regard to the legal *143 issues which might arise concerning the scope of the first Turkish declaration. [FN77]

FN77 The Greek Government contending that the restrictions were null and void.

That means that the other Member States and the Committee of Ministers have not formally contested the declaration as a whole, or accepted any one part as essential or subsidiary. Consequently, it cannot be concluded that there is a uniform and consistent practice [FN78] or practically universal agreement. [FN79]

FN78 Para. 82.

FN79 Para. 80.

At this stage it is useful to point out that numerous declarations set out in instruments of ratification were couched in complex terms or ran to a number of sections. [FN80] States expressly named "territories for whose international relations [they were] responsible"; Turkey has not done so in respect of northern Cyprus. Apart from the territorial reservations within the strict meaning of the Convention, [FN81] the chart of signatures and ratifications shows that some States have made both declarations and reservations. [FN82] In the Belgian Congo case [FN83] the Commission upheld the international relations argument. By analogy, in order to determine the scope of a declaration, it should be pointed out that, according to the Vienna Convention, [FN84]a ground for invalidating or terminating a treaty may only be invoked with respect to particular clauses where "(a) the said clauses are separable from the remainder of the treaty with regard to their application" and "(b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole" . Accordingly, in our opinion, it was inappropriate at the stage reached by this case in the proceedings before the Court to sever the terms of the Turkish declaration.

FN80 See the appended declarations of France, the United Kingdom and the Netherlands; see also those of Malta and Portugal, the Cypriot declaration of 9 August 1988 or the "colonial" clauses.

FN81 800 international treaties include such reservations.

FN82 See appended table.

FN83 Dec. 30.5.61 on the admissibility of App. No. 1065/61, X. v. Belgium, Yearbook 4, pp. 261-277.

FN84 Art. 44: "Separability of treaty provisions".

The only satisfactory solution in our view was to join all the objections to the merits and to hold a public hearing on the merits giving the Parties the possibility of adducing all relevant evidence on the expression "within [the] jurisdiction" [FN85] and on the way the international relations of northern Cyprus are conducted. This debate on the merits would also enable all Parties to make known their views about the international undertakings and possible intervention of a "third party" or the TRNC under the auspices of the United Nations, the European Union and the Council of Europe. [FN86]

FN85 Art. 1.

FN86 1989 Declaration consisting of two instruments signed by three signatories, including the TRNC; References and Reports of the Secretary- General of the United Nations, from 3 April 1992 to 30 May 1994; Council of Europe report of 15 December 1994, Doc. 7206.

*144 APPENDICES

Declaration by France

[FN87]

Article 15, paragraph 1

...

FN87 3 May 1974.

The government of the Republic further declares that the Convention shall apply to the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63.

Declaration by the United Kingdom

[FN88]

FN88 14 January 1966.

The British declaration under Article 25 of 14 January 1966, periodically renewed since then, is reproduced in paragraph 33 of the judgment.

The declaration under Article 63 of 23 October 1953 listed 43 relevant territories. [FN89] The declaration of 10 June 1994 listed the States which had become independent. The declaration of 14 August 1964 listed the territories omitted.

FN89 Including Cyprus, the Isle of Man and Gibraltar.

Declaration by the Netherlands

[FN90]

The island of Aruba, which is at present still part of the Netherlands Antilles, will obtain internal autonomy as a country within the Kingdom of the Netherlands as of 1 January 1986. Consequently the Kingdom will from then on no longer consist of two countries, namely the Netherlands [FN91] and the Netherlands Antilles, [FN92]but will consist of three countries, namely the said two countries and the country Aruba.

FN90 24 December 1985.

FN91 The Kingdom in Europe.

FN92 Situated in the Caribbean region.

As the changes being made on 1 January 1986 concern a shift only in the internal constitutional relations within the Kingdom of the Netherlands, and as the Kingdom as such will remain the subject under international law with which treaties are concluded, the said changes will have no consequences in international law regarding treaties concluded by the Kingdom which already apply to the Netherlands Antilles, including Aruba. These treaties will remain in force for Aruba in its new capacity of country within the Kingdom. Therefore these treaties will as of 1 January 1986, as concerns the Kingdom of the Netherlands, apply to the Netherlands Antilles [FN93] andAruba.

FN93 Without Aruba.

Consequently the treaties referred to in the annex, to which the Kingdom of the Netherlands is a Party and which apply to the Netherlands Antilles, will as of 1 January 1986 as concerns the Kingdom of the Netherlands apply to the Netherlands Antilles and Aruba.

*145 Chart of signatures and ratifications of the Convention

[FN94]

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

FN94 At 31 December 1994, extracts.

Individual Dissenting Opinion of Mr Gölcüklü

In addition to the matters I raised in my joint dissenting opinion with Mr Pettiti concerning the preliminary objections on the questions of "jurisdiction" [FN95] and the "inseparability"of the Turkish declarations under Articles 25 and 46 of the Convention, [FN96] I cannot agree, to my great regret, with the Court's conclusions on two other aspects of this case.

FN95 Art. 1 of the Convention; paras. 62 and 64 of the present judgment.

FN96 Paras. 94 et seq.

1. I consider that it is not possible in this case to reach a conclusion on the role of the "Turkish Government", or in other words on its status as "respondent", without first looking into the merits of the case. On *146 21 April 1994 the plenary Court did not decide whether Turkey had the status of respondent, but only considered the question submitted to it by the President, under Rule 34 of Rules A and decided, without prejudice to the preliminary objections raised by the Government of Turkey or the merits of the case, that the applicant Government had standing under Article 48(b) of the Convention to refer the case to the Court and that the Chamber should resume consideration of the case. [FN97]And in its final submissions Turkey had asked the Court to hold that the applicant's allegations lay outside the jurisdiction of Turkey within the meaning of Article 1 of the Convention. It goes without saying that this question of "respondent status" is closely bound up with the question of "jurisdiction" within the meaning of Article 1 of the Convention. The Court took the view that it was not within the discretion of a Contracting Party to characterise its standing in the proceedings before the Court as it saw fit. [FN98]By the same token, the applicant is not entitled to name any State she sees fit as respondent in a case before the Court, nor is it for the Court to build a whole procedure on top of this unverified allegation. Therefore, instead of delivering a separate judgment on this specific question, as it has done, the Court should have joined the preliminary objection in question lodged by Turkey to the merits of the case.

FN97 Para. 7.

FN98 Para. 51.

2. With regard to point 3 of the judgment's operative provisions, I entirely agree with the dissenting opinion expressed in this case by five eminent members of the Commission [FN99] in which they declared:

...

FN99 Mr Norgaard, the President, and Mr Jörundsson, Mr Güzübüyük, Mr Soyer and Mr Danelius.

Moreover, under Article 63of the Convention, certain territorial limitations are also expressly provided for. However, Article 63 concerns territories for whose international relations a Contracting State is responsible, and the northern part of Cyprus cannot be regarded as such a territory. Nevertheless, Article 63 shows that, when making a declaration under Article 25, a Contracting State may, in some circumstances, make a distinction between different territories.

If a State may exclude the application of Article 25 to a territory referred to in Article 63, there would seem to be no specific reason why it should not be allowed to exclude the application of the right of individual petition to a territory having even looser constitutional ties with the State's main territory. If this was not permitted, the result might in some circumstances be that the State would refrain altogether from recognising the right of individual petition, which would not serve the cause of human rights.

We consider that the territorial limitation in the Turkish declaration, in so far as it excludes the northern part of Cyprus, cannot be considered incompatible with the object and purpose of the Convention and that it should therefore be regarded as having legal effect.

In these circumstances, it is not necessary to examine what the legal consequences would have been if the territorial limitation had been held not to be legally valid.

*147 It follows that ... the Commission is not competent to deal with the applicant's complaints of violations of the Convention in Cyprus. For these reasons, we have voted against any finding of a violation of the Convention in the present case.

I interpret Article 6 of Protocol No. 7 in the same way. I would also like to cite, in this connection, another opinion to the above effect, that of Professor Christian Tomuschat.

Turkey's refusal to accept the supervisory authority of the Commission with regard to all other areas than the Turkish national territory itself ... may be justifiable under Article 63(4) . This provision admits of a differentiation between metropolitan territories and other territories 'for whose international relations' a State is 'responsible'. Although the text avoids speaking of colonial territories, the intention of the drafters was precisely to leave States Parties some latitude with regard to their extra- European dependencies. If interpreted in this restricted sense, Article 63(4) could not be relied upon by Turkey. However, doubts may be raised as to the precise scope of Article 63(4). The United Kingdom also invoked it in respect of its European dependencies, namely the Bailiwicks of Guernsey and Jersey and the Isle of Man. Originally, Guernsey and the Isle of Man were mentioned in the first declaration under Article 25 of 12 September 1967 which defined the competence of the Commission in territorial terms. When the declaration was renewed for the first time in 1969, Guernsey and the Isle of Man were excluded. Afterwards, the two territories were again added to the geographical lists accompanying the relevant declarations. As mentioned above, the Isle of Man was dropped from those lists in 1976. Strangely enough, Jersey is mentioned for the first time explicitly in the declaration of 4 December 1981, though in a positive sense, as being placed again ("renew") under the control mechanism of Article 25. To date, no objections have been lodged against this practice. It might be argued, therefore, that Article 63(4) has evolved into a clause conferring unfettered discretion on States concerning the territorial scope of their declarations under Article 25, whenever territories beyond the national boundaries are concerned.

Additionally, it might be contended that valid substantive reasons could be identified to support such a conclusion. The extraterritorial legal effect of human rights standards is particularly difficult to assess. While there can be no doubt that States have to refrain from interfering with human rights irrespective of the place of their actions, to ensure human rights beyond their boundaries is mostly beyond their capabilities. It is noteworthy, in this connection, that the International Covenant on Civil and Political Rights limits the commitments of States to individuals within their territory and subject to their jurisdiction. [FN100]

FN100 "Turkey's declaration under Article 25 of the European Convention on Human Rights", Festschrift für Felix Ermacora, Kehl, Engel, 1988, pp. 128-9.

For other examples supporting this argument, it is sufficient to cast a glance at the long list of reservations and declarations deposited by the Contracting States.

I therefore consider valid the territorial restrictions contained in the Turkish declarations under Articles 25 and 46, applying, at least by analogy, Article 63 of the Convention.

*148 Individual Dissenting Opinion of Mr Pettiti

The solution advocated, i.e. joining all the preliminary objections to the merits, had the advantage of permitting an overall view of the situation of Cyprus and Turkey regarding the disputes concerning northern Cyprus. It is not appropriate to sever the objection ratione locifrom interpretation of Article 1; to my mind these issues are inseparable. Consideration of the merits as a whole would have made it easier to elucidate the question of the TRNC's international or other status, and that of the agreement concluded as a result of the relations and negotiations conducted at the United Nations, under which people do not enjoy liberty of movement in both directions.

I consider that this overall examination of the merits, before consideration of the first objection and the declaration, was necessary in order to decide the very scope of the declaration. The European Convention is not an international treaty of the traditional type nor a synallagmatic convention, as legal writers, and particularly Professor Cohen-Jonathan, have pointed out, since it is not based on reciprocity.

It is based on the principle that all individual subjects of law are its beneficiaries, so that fundamental rights can be protected more securely. The Court is the guarantor of the Convention and must endeavour to extend its protection as far as possible; it is therefore empowered to draw the consequences of instruments deposited by the States. Consequently, the Court can better fulfil its protective role by having at its disposal all the information necessary to assess the legal and factual situation.

In the search for a peaceful compromise, the northern Cyprus question has been discussed in all international negotiations concerning Greece, Cyprus and Turkey, including those relating to European Union customs agreements or GATT agreements.

At the examination of preliminary objections stage, after the discussion at the public hearing, which was limited to analysis of these objections by the Parties, the European Court was not able to take cognisance of all the problems, and this circumstance militated even more forcefully in favour of joining all these objections to the merits. To date legal writers have not considered analysis of the Turkish declaration a simple matter. [FN101]

FN101 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 [FN102] 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. [FN103] The responsibilities of the European Convention institutions, when faced with such *149 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.

FN102 "Occupation", "annexation", territorial application of the Geneva Conventions in northern Cyprus, "conduct of international relations".

FN103 See Security Council resolution 930.