- Right to property
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 The Loizidou Case originated in an application against the Republic of Turkey lodged with the European Commission of Human Rights on 22 July 1989 and referred to the European Court of Human Rights (ECtHR) by the government of the Republic of Cyprus in November 1993. The case dealt with several important issues of international law, notably the validity of restrictions to human rights treaties, the effects of State recognition, extraterritorial jurisdiction (Extraterritoriality ; Jurisdiction of States), and State responsibility.
B. Factual and Procedural Background
2 The applicant was a Cypriot national of Greek origin from Kyrenia in northern Cyprus who had moved to Nicosia after her marriage in 1972. She claimed to be the owner of several plots of land in Kyrenia and alleged that on one plot she had started to have flats built, one of which was intended as a home for her family. She contended that since the invasion of Turkish forces in 1974, she had been prevented from returning to Kyrenia and peacefully enjoying her property.
3 Before the Commission, the applicant claimed that the refusal of access to her property constituted a violation of Arts 1 Protocol No 1 (right to property) and 8 (private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) (Family, Right to, International Protection; Privacy, Right to, International Protection; Property, Right to, International Protection). She also made a complaint under Arts 3 (prohibition of torture) and 5 (1) (right to liberty and security) due to her arrest and detention by the Turkish police after having participated in a demonstration in northern Cyprus (Liberty, Right to, International Protection; Security, Right to, International Protection; Torture, Prohibition of). Since the Commission denied a violation of the convention in Chrysostomos et al v Turkey, the Republic of Cyprus addressed the ECtHR, confining itself to a complaint under Art. 8 and Art. 1 Protocol No 1.
C. Decision on Preliminary Objections
4 Joining to the merits the preliminary objection ratione temporis contended by Turkey, the Court dismissed by 16 votes to two Turkey’s preliminary objections ratione loci concerning the jurisdiction of the Court under Art. 1 ECHR and the territorial restrictions submitted by Turkey under former Arts 25 and 46 ECHR.
5 The court reserved the final analysis of the question whether Turkey was actually responsible under the convention to the decision on the merits and confined itself to an analysis whether the relevant acts were capable of falling within Turkey’s jurisdiction within the meaning of Art. 1 ECHR. Relying on Soering v United Kingdom and Drozd and Janousek v France and Spain, the ECtHR confirmed that the concept of jurisdiction under Art. 1 ECHR was not confined to the territory of the Contracting States (Human Rights, Treaties, Extraterritorial Application and Effects). While the Commission when determining jurisdiction examined whether the respondent government had actual authority and control over persons or property (an approach developed in Cyprus v Turkey ), the Court focused on general effective control over territory (Effectiveness). It held that responsibility may also arise, when, as a consequence of lawful or unlawful military action, the State exercised effective control of an area outside its national territory directly or through a subordinate local administration. In the present case, the Court deduced such control from the large contingent of Turkish troops in northern Cyprus. Since it was undisputed that the applicant’s loss of control of her property stemmed from the occupation of the northern part of Cyprus, the Court held that the facts alleged by the applicant were capable of falling under Turkish ‘jurisdiction’ within the meaning of Art. 1 ECHR.
6 The court affirmed its reasoning in Cyprus v Turkey (2001) and additionally justified its extensive interpretation of the concept of jurisdiction by referring to the European public order. However, the possible implication of Loizidou that the Contracting States are responsible for all acts of their armies abroad was rejected in the Banković Case, where the ECtHR underlined the primarily territorial nature of jurisdiction and the exceptional nature of extraterritorial jurisdiction. It adhered to the effective control test, but distinguished Banković from Loizidou by stressing that in contrast to long-term military occupation, where the respondent government exercised at least some of the public powers normally exercised by the government, air strikes on foreign sovereign territory could not be regarded as an exercise of jurisdiction. Moreover, it pointed out the regional character of the convention, arguing that in contrast to northern Cyprus, the inhabitants of Yugoslavia had never been within the sphere of protection of the ECHR.
7 Since the Court distinguished the Banković Case from the Loizidou Case, it can still be regarded established case-law that, when a Contracting State exercises effective control over the territory of another State, it will be held accountable for acts of its official organs and of the local public authorities operating on that territory.
2. Territorial Restrictions
8 Turkey had accepted the right of petition to the Commission and the jurisdiction of the Court under former Arts 25 and 46 ECHR. However, both declarations contained a formula restricting their scope to complaints concerning the exercise of jurisdiction within the boundaries of the national territory of the Republic of Turkey. The court discussed the validity of these territorial restrictions to the convention and the legal effects of their invalidity.
(a) Validity of the Restrictions
9 The court left open the question whether the restrictions were reservations under international law (Treaties, Multilateral, Reservations to) and came to the conclusion that the territorial restrictions attached to Turkey’s declarations under Arts 25 and 46 had to be considered invalid. It focused on the object and purpose of the Convention that had to be interpreted as to render its safeguards practical and effective (Interpretation in International Law; Treaties, Object and Purpose). The court reaffirmed, as it had already elaborated in Ireland v United Kingdom, that the European system of human rights protection was not based on the concept of reciprocity between States, but contained objective standards for the protection of basic rights. Since the competence of the Commission and the Court were essential for the collective enforcement of these Convention rights, it could not be derogated except in cases of restrictions ratione temporis which were expressly permitted by Arts 25 (2) and 46 (2) ECHR.
10 In order to underline the special character of the convention that has set standards in the whole of Europe, the Court referred to it as a constitutional instrument of the European public order. While the Commission had already several times affirmed the existence of an ordre public communitaire or ordre public européen—for the first time in Austria v Italy—it was the first time that the ECtHR used this notion. Although the exact content of the term is unclear, it established in the Loizidou Case that the effective enforcement of human rights standards is an integral part of the European public order, which leads to the inadmissibility of restrictions to jurisdiction other than those explicitly provided for.
11 To support its finding, the Court adopted a dynamic interpretation of the ECHR, arguing that in order to guarantee its effectiveness, regard had to be paid to subsequent State practice, which revealed that almost no State had attached restrictions ratione loci or ratione materiae to its declarations under Arts 25 and 46 ECHR. The court also differentiated between the European human rights system and traditional international law. Whereas States had declared numerous reservations under the optional clause of Art. 36 (2) ICJ Statute (International Court of Justice, Optional Clause), the Court held that although Art. 46 ECHR was modelled on this provision, the object and purpose of the two treaties was fundamentally different. While the ICJ dealt with legal disputes between States concerning all sorts of questions of international law, the ECtHR adjudicated individual complaints and the compliance of States with a law-making treaty.
(b) Severability of Restrictions and Declaration of Acceptance
12 Concerning the legal consequences of the invalidity of the restrictions, the ECtHR basically had three options, namely to declare the entire declaration of acceptance of the competence of the Court invalid, or to assume a partial validity exempting the part concerned by the invalid restriction, which would be absurd since it would be irrelevant whether the restriction was valid or invalid, or to divide the declaration into an invalid part—the restriction—and a valid part—the declaration of acceptance of competence.
13 The court made an attempt to prove that Turkey’s main intention was to accept jurisdiction, arguing that Turkey had deposited its declaration of acceptance although it was obvious from State practice that its restrictions were of questionable validity. To corroborate its finding, the Court invoked the Belilos v Switzerland Case, where an invalid reservation had been separated from a valid part of acceptance of competence. However, while in the Belilos Case the Swiss government had made clear that it considered itself bound by the convention irrespective of the validity of the reservation, the Turkish government had declared that it considered the territorial restriction so essential that its invalidity should have as a consequence the invalidity of the whole declaration.
14 In addition, the Court again relied on the character of the convention as an instrument of the European public order and on its duty to ensure the observance of the State obligations. The effectiveness of the conventional system could only be preserved by countering the admissibility of extensive restrictions. As a consequence, Turkey was fully bound by the declarations of acceptance of the competence of the Commission and court.
15 The result of this reasoning is that the will of a Contracting Party is abandoned as far as it would undermine the public order established by the convention, which was a point of critique in the joint dissenting opinion of judges Gölküklü und Pettiti. Nevertheless, the Court’s reasoning was confirmed in the Ilaşcu Case concerning Moldova’s territorial restrictions.
D. Judgment on the Merits
16 In the judgment on the merits, the Court dismissed Turkey’s preliminary objection ratione temporis and affirmed State responsibility by 11 votes to six.
1. Preliminary Objection ratione temporis
17 Turkey had limited the Court’s jurisdiction in its declaration of 22 January 1990 to facts which would occur subsequent to the time of deposit of the declaration. The decision on the preliminary objection ratione temporis therefore depended upon whether the expropriation was an instantaneous act with lasting effect completed before the acceptance of jurisdiction or else whether there was a continuing violation subsequent to 22 January 1990.
18 While the majority interpreted Turkey’s allegations as an acknowledgement that no expropriation had taken place until 1985, the dissenting judges regarded as the relevant fact giving rise to the applicant’s loss of control of her property the closure of the border and the establishment of the buffer-zone in 1974. Accordingly, they did not find the concept of ‘continuing violation’ applicable in the present case and voted in favour of upholding the preliminary objection ratione temporis.
19 In contrast, the majority concentrated on the question whether the applicant had definitely lost ownership by virtue of Art. 159 (1) (b) 1985 Constitution of the ‘Turkish Republic of Northern Cyprus’ (‘TRNC’), which provided that certain immovable property in northern Cyprus should be the property of the TRNC (Nationalization). In the Court’s view, the validity of the expropriation depended upon the recognition of the TRNC by the international community. Instead of examining itself the statehood of the TRNC (State), the Court relied on several international acts including United Nations Security Council Resolutions 541 (1983) and 550 (1984), which declared the establishment of the TRNC legally invalid and called upon all States not to recognize any Cypriot State other than the Republic of Cyprus, and similar statements by the Committee of Ministers of the Council of Europe (COE), the European Communities and the Commonwealth Heads of Government. The Court held that it followed from the non-recognition of the TRNC that its legal acts had no legal validity and that, accordingly, the applicant had not lost her property by means of the Constitution. Since the continued hindrance to enjoy her property therefore constituted a continuing violation, the Court dismissed the preliminary objection ratione temporis (ECtHR Reports 1998-IV 1811).
20 Since the UN resolutions were not binding and recognition is generally not regarded as constitutive for statehood, it is likely that the Court invoked non-recognition as a sign for the prevailing legal opinion in the international community that the TRNC lacked independence and that there were legal defects in its creation (Territorial Integrity and Political Independence). By relying exclusively on non-recognition, the Court avoided an independent determination of the status of the TRNC, which would have involved difficult questions of international law such as characteristics of statehood or de facto regimes (De facto Regime). The court thus avoided examining the effectiveness of the TRNC administration, including its independence from Turkey and the legality of the establishment of the TRNC, and including an examination of the prohibition of the use of force, of the 1960 Guarantee Treaty and of an alleged right to self-determination (Use of Force, Prohibition of; Use of Force, Prohibition of Threat).
21 The concurring judges Wildhaber and Ryssdal went into Turkey’s submission that the secession of the TRNC had taken place in pursuance of the Turkish Cypriots’ right to self-determination. They argued that where the right to self-determination did not strengthen the human rights and democracy of all persons and groups involved, it could not be invoked to establish the statehood of the TRNC.
22 The Court expressly refrained from elaborating a general theory on the validity of legal acts of the TRNC. As stated in the ICJ Advisory Opinion on South African presence in Namibia (South West Africa/Namibia [Advisory Opinions and Judgments]), the maxim ex iniuria ius non oritur is not absolute. A de facto regime’s acts may be valid if their invalidity would have detrimental effects on the inhabitants of the territory. The Court held that since no disadvantage for the inhabitants of northern Cyprus could be discerned from the invalidity of the acts of the TRNC, its acts were to be considered invalid. In Cyprus v Turkey (2001), the Court declared the system of administration of justice of the TRNC valid, distinguishing the case from the Loizidou Case by arguing that the absence of remedies would be detrimental to individuals (see also Human Rights, Remedies; Remedies).
23 Regarding the Commission’s and court’s case-law with regard to continuing violations of the right to property, the Court has ruled in Papamichalopoulos v Greece that the occupation of property contrary to national law was not a valid expropriation. In contrast, the Court assumed an instantaneous act when property was taken in the legally prescribed procedure (A, B & Co AS v Germany). In Hans-Adam II of Liechtenstein v Germany concerning confiscation by means of the Beneš Decrees, the Court concisely stated that there was no question of a continuing violation. In the cases concerning the Treaties of Warsaw and Moscow (X, Y, Z v Germany) and the German Unification Treaty (Weidlich and others v Germany), the Commission had already established that expropriations were generally instantaneous acts. In its reasoning, one argument was that the property had not been susceptible to effective exercise for a long period and that the applicants had no legitimate expectations that the claim could be realized, thus denying a legal position in the form of ‘existing possessions’. In contrast, the lack of effective exercise of possessions was no argument in the Loizidou Case. However, in Loizidou, the Court could fully rely on the non-recognition of the TRNC and circumvent a more detailed examination of the validity of legal acts, while statehood was not in question in the other cases.
2. Violation of Article 1 Protocol No 1
24 The court examined Turkey’s responsibility by first examining the imputability and then the breach of an international obligation, as prescribed by Art. 2 International Law Commission (ILC) Draft Articles on State Responsibility. The court held by 11 votes to six that the continuous denial of access to the applicant’s property in northern Cyprus and the ensuing loss of all control over it were imputable to the Turkish government and constituted a violation of the right to enjoy one’s possessions peacefully.
25 The court ruled that Turkey was responsible for human rights violations in northern Cyprus (ECtHR Reports 1996-VI 2236).
26 It reaffirmed its view espoused in the decision on the preliminary objections that effective control over an area outside a State’s national territory entailed that State’s responsibility, regardless of the lawfulness of such control, without distinguishing between responsibility and jurisdiction. In contrast to the Commission, which had focused on the actual authority over individuals and the direct involvement of Turkish authorities in the interference with the applicant’s rights, the Court did not distinguish between general jurisdiction and actual involvement with the violation but considered effective overall control over the territory sufficient to establish imputability. The court therefore concluded by 11 votes to six that the continuous denial of access to the applicant’s property in northern Cyprus was imputable to Turkey.
27 In contrast, the dissenting judges argued that the case at hand was the consequence not of an individual act of Turkish troops directed against the applicant’s property, but that it was the closure of the border in 1974 and the establishment of a buffer-zone protected by UN troops which made it impossible for Greek Cypriots to gain access to their property. They underlined that the presence of Turkish troops in northern Cyprus and Turkey’s support of the TRNC was only one element in an extremely complex historical development.
28 Moreover, the dissenting judges Gölcüklü and Pettiti held that the ECtHR should have examined independently whether the TRNC was a State under international law. Judge Gölcüklü argued that there was an independent and sovereign authority in northern Cyprus, no matter whether that authority was legally recognized by the international community. Accordingly, he held that the acts under consideration were exercises of jurisdiction by the TRNC, which could not be imputed to Turkey.
29 If the Court had found that the violation could be imputed to the TRNC, the ECHR would not have been applicable in northern Cyprus, although Cyprus ratified it in 1962. It was obviously the wish of the ECtHR to prevent such a gap in human rights protection.
(b) Interference with the Right to Property
30 The Commission had come to the conclusion that the application did not concern the right to property, but only the right to freedom of movement (Movement, Freedom of, International Protection). In contrast, the Court accepted an interference with the right to property. Being continuously denied access to her land, the applicant’s property rights were completely negated, which could not be justified by the need to rehouse displaced Turkish Cypriot refugees or by the ongoing intercommunal talks which also addressed the problem of property rights. As a consequence of the violation of the right to property, the Court in a following judgment awarded the applicant CYP 300,000 as pecuniary damages and CYP 20,000 as non-pecuniary damages.
3. Violation of Article 8
31 The applicant also alleged an interference with her right to home in violation of Art. 8 ECHR. The applicant alleged that she had intended to move back into a flat on one of her plots of land whose construction had begun in 1974. The court argued that it would strain the meaning of the notion ‘home’ in Art. 8 ECHR to extend it to comprise property on which it is planned to build a home. Nor could that term cover an area where one has grown up and where the family has roots, but where one no longer lived. The court therefore held unanimously that there was no violation of Art. 8 ECHR.
E. Conclusion and Further Developments
32 The Loizidou Case is a cornerstone in the European system of human rights protection. In the judgment on preliminary objections, the Court established the character of the convention as an instrument of the European public order and clarified the content of this notion.
33 Moreover, the case reaffirmed that the concept of jurisdiction is not confined to the national territory of the Contracting States, but that in the case of effective control over an area outside its national territory, the occupying power is responsible for human rights violations in that area.
34 Finally, the case raises the question whether an international tribunal should exercise judicial restraint when deciding on highly political and complex questions with far-reaching consequences which transcend adjudication of an individual case. It is evident that the case had a precedential effect on thousands of other cases involving real property in northern Cyprus, as confirmed in Cyprus v Turkey (2001). The dissenting judges underlined that the situation of the individual victim could not be separated from the particular political circumstances of the conflict and criticized that the ECtHR interfered with the political and diplomatic domain. By deciding to do justice to the individual applicant, the Court emphasized that the Member States’ obligation to respect human rights is absolute and cannot be subordinated to considerations of political convenience.
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