1995

ECHR

Loizidou v Turkey Preliminary Objections

Mrs Loizidou a Cypriot national lost control over her property situated in northern Cyprus as consequence of the occupation of that part of the country by Turkish Troops 1974, and claimed that she had been prevented by Turkish forces from returning to her land and peacefully enjoyed it. 1989 Loizidou referred the case to the European Commission of Human Rights 1993 Cyprus referred the case to the E Court of HR Turkish government considered the case fell outside the jurisdiction, as it related to events occurred before its declaration of acceptance compulsory jurisdiction 1990 and it related matters not of Turkey but of TRNC, acts outside the territory covered by that declaration 1987 Turkey deposited a declaration to the Convention ‘Turkey declares to accept the competence of the E Commission of HR subject: allegations only concerned to acts within the boundaries of the Turkish territory and in respect of facts subsequent to 1987. Greece opposed to this declaration, Sweden, Luxemburg, Denmark, Norway reserved their right to express opinion. 1987 Turkey stated that the only competent organ that could make a legally binding assessment as to the validity of his declaration was the E Commission HR, when being sized by individual application or Committee of Ministers 1990 Turkey renewed her declaration in similar terms 1990 Turkey made a declaration under art 46 Convention: ‘Turkey recognizes compulsory jurisdiction E Court HR in all matters performed within the boundaries of Turkey and such matters have been examined by the Commission within the power given by’ Art 25 ‘commission may receive petitions made by individuals provided that the party against which the complain is made had recognised the competence of the Commission. Parties undertake not to hinder in any way the effective exercise of this right’ Art 46 ‘party can recognize compulsory jurisdiction of the Court, and it may be done on condition of reciprocity or for specific period’ [no more conditions permitted] Art 64 ECHR ‘any state when signing the convention can make reservations to the extent that the law in force in its territory is not in conformity. Reservations of general character shall not be permitted. Any reservation shall contain a brief statement of the law concerned’ Turkey contended that deprivation of property is a direct result of an instantaneous act

Turkey alleged that Cyprus did not represent the people of Cyprus, and refer to the Greek Cypriot Administration. The court noted that applicant government has been recognised by the I community as the Government of the Republic of Cyprus. Recognition of an applicant government by the respondent government is not precondition of proceedings, otherwise the collective enforcement central to the convention could be neutralised by the interplay of recognition. Jurisdiction is not restricted to the national territory of the parties, by the object and purpose of the ECHR 1958 responsibility of a Party might arise when, as consequence of military action (lawful or unlawful) it exercises effective control over an area outside its national territory. The obligation to secure the rights of the conventions derives from the fact of such control whether exercised directly, through its armed forces, or trough a subordinate local administration. Art 25 & 46 are essential to the effectiveness of the convention since they delineate the competence of the Commission and the Court. In interpreting this provisions it must be considered the special character of the convention as a treaty of collective enforcement of HR Ireland v UK 1978 ‘unlike I treaties of the classical kind the convention comprises more than mere reciprocal engagements. It creates over and above a network of bilateral undertakings, objective obligations’ Convention is a living instrument that cannot be interpreted solely in accordance with the intentions of their authors as expressed more than 40 years ago If substantive or territorial restriction were permissible it would diminishes the effectiveness of the convention as a constitutional instrument of European Public order. Practice of state supports this conclusion. Power to make reservation 64 is limited. Turkey alleged that if reservations were declared invalid, as they were essential to its consent, then Turkey would be out the convention. Court notes that in reservation art 25 it was Turkey intention to accept right of individual petition and this intention must prevail. In the issue of severability of the invalid parts of Turkey’s declarations Turkey must have been aware of the consistent practice of the parties under 25 & 46 to accept unconditionally the competence of the Commission and Court. And the fact that against such practices submitted her declarations is evidence of her wiliness to run the risk that some clauses would be declared invalid without affecting the validity of the declarations themselves. Regarding objections ratione temporis, the court joined them to Merit