Case of Loizidou v Turkey: Background to the Case and Summary

The applicant, Mrs Titina Loizidou, is a Cypriot citizen. She grew up in Kyrenia in northern Cyprus, where she owned certain plots of land. In 1972 she married and moved with her husband to Nicosia. Since 1974, she had been prevented from gaining access to the above-mentioned properties as a result of the presence of Turkish forces in Cyprus On 19 March 1989 a Greek Cypriot womens group, Women Walk Home, organised a march with the announced intention of crossing the Turkish forces ceasefire line. From Nicosia the demonstrators drove to the village of Lymbia, where a group managed to cross the buffer zone and the Turkish forces line. Some of the women, including Mrs Loizidou, were arrested by Turkish Cypriot policemen. Later the same day, they were released to United Nations officials (UNFICYP) in Nicosia and taken over to the Greek Cypriot area. The case originated in an application lodged with the European Commission of Human Rights on 22 July 1989. The case was referred to the Court by the Government of Cyprus in so far as it related to the alleged interference with the applicant's property rights and her home (Article 1 of Protocol No. 1 and Article 8 of the Convention). THE COURT'S FIRST JUDGMENT IN THE CASE The Turkish Government had submitted, by way of preliminary objections, inter alia, that the case fell outside the Courts jurisdiction on the grounds that it related to facts and events which occurred before 22 January 1990, when Turkey declared that she accepted the compulsory jurisdiction of the Court (objection ratione temporis) and that it did not concern matters arising within the territory covered by this declaration (objection ratione loci). In a separate judgment of 23 March 1995 the Court rejected the latter objection but joined to the merits the first preliminary objection (ratione temporis).

THE TURKISH GOVERNMENT'S PRELIMINARY OBJECTION The Turkish Government had claimed inter alia that the applicant had irreversibly lost ownership of her property prior to Turkeys Declaration of 22 January 1990 accepting the Courts jurisdiction under Article 48 of the Convention. The Court observed that its case-law recognised the concept of a continuing violation of the Convention. The present case would in principle concern alleged violations of a

continuing nature, but only if Mrs Loizidou could still be regarded as the legal owner of the land. According to the Turkish Government, however, she had lost ownership on 7 May 1985 as a result of the operation of Article 159 of the Constitution of the Turkish Republic of Northern Cyprus (TRNC) which purported to expropriate inter alia properties within the boundaries of the TRNC which were considered abandoned after 13 February 1975. In this context, the Court took note of United Nations Security Council Resolution 541 (1983) declaring the proclamation of the establishment of the TRNC as legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was reiterated by the Security Council in Resolution 550 (adopted on 11 May 1984). 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. A position to similar affect was taken by the European Community and the Commonwealth Heads of Government. Moreover, it was only the Cypriot Government which was recognised internationally as the Government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations. In the Courts view, the principles underlying the Convention could not be interpreted and applied in a vacuum. Mindful of the Conventions special character as a human rights treaty, it had also to take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction. In this respect it was evident from international practice and the various strongly worded resolutions referred to above that the international community did not regard the TRNC as a State under international law and that the Republic of Cyprus had remained the sole legitimate Government of Cyprus. Against this background, the Court could not attribute legal validity for purposes of the Convention to such provisions as Article 159 of the TRNC Constitution, and Mrs Loizidou could not be deemed to have lost title to her property as a result of it. Since no other facts indicating that she had ceased to own the land had been advanced by the Turkish Government or found by the Court, she had still to be regarded as legal owner for the purposes of Article 1 of Protocol No. 1 and Article 8 of the Convention. The objection ratione temporis therefore failed.

Article 1 of Protocol No. 1 Imputability issue

The Court observed that the concept of jurisdiction under the Convention was not restricted to national territory. In particular, the responsibility of a Contracting State

could arise when it exercised effective control in an area outside its national territory as a consequence of military action. In the present case, the Court found it significant that the Turkish Government had acknowledged at an earlier stage in the case that Mrs Loizidous loss of control of her property stemmed from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the TRNC. Moreover, it had not been disputed that on several occasions she had been prevented by Turkish troops from gaining access to her property. In the Courts view, it was obvious from the large number of troops engaged in active duties in northern Cyprus that the Turkish army exercised effective overall control there. In the circumstances of the case, this entailed Turkeys responsibility for the policies and actions of the TRNC. Thus, the denial to Mrs Loizidou of access to her property in northern Cyprus fell within Turkeys jurisdiction for the purposes of Article 1 of Convention and was imputable to Turkey.

ARTICLE 50 OF THE CONVENTION Since the Turkish Government had not commented on Mrs Loizidous claim for just satisfaction, the Court decided to reserve the question and to invite the Government and the applicant to submit written observations on the matter within the following six months. (paragraphs 67-69 of the judgment and point 5 of the operative provisions)

JUDGMENT IN THE CASE OF LOIZIDOU v TURKEY (article 59) In a judgment communicated to the parties on 28 July 1998 in the case of Loizidou v. Turkey (Article 50), the European Court of Human Rights, by fifteen votes to two, dismissed the respondent States claim that the applicant was not entitled to an award of just satisfaction under Article 50 of the European Convention on Human Rights, and awarded her specified sums in respect of pecuniary and non-pecuniary damage and legal costs and expenses.

SUMMARY OF THE JUDGEMENT Entitlement to just satisfaction In view of its earlier findings that the applicant had suffered an unjustified interference with her property rights which was imputable to Turkey, the Court considered that it should make an award under Article 50. [See paragraphs 19-24 of the judgment and point 1 of the operative provisions.]

Pecuniary damage Given the uncertainties inherent in assessing the economic loss caused to the applicant by the denial of access to her property, the Court made an assessment on an equitable basis and awarded CYP 300,000. [See paragraphs 25-32 of the judgment and point 2 of the operative provisions.] Non-pecuniary damage The Court awarded CYP 20,000 in compensation for the feelings of anguish, helplessness and frustration caused to the applicant by the loss of the use of her property. [See paragraphs 33-38 of the judgment and point 3 of the operative provisions.] Costs and expenses The Court awarded the applicants costs and expenses in full but did not make any award in respect of the costs and expenses claimed by the Cypriot Government. [See paragraphs 39-46 of the judgment and points 4 and 6 of the operative provisions.]

APPENDIX Articles referred to in the summary. Article 50 of the Convention 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.

Article 1 of Protocol No. 1 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.