ECtHR - Loizidou v Turkey, Application no. 15318/89, 18 December 1996
| Country of applicant: | Cyprus |
| Court name: | European Court of Human Rights (Grand Chamber) |
| Date of decision: | 18-12-1996 |
| Citation: | Loizidou v Turkey [1995] ECtHR, Application no. 15318/89 |
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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International armed conflict
Description
“A war involving two or more states, regardless of whether a declaration of war has been made or whether the parties recognize that there is a state of war.” |
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Acts contrary to the purposes and principles of the UN
Description
Extreme activity with an international dimension committed by persons who have been in positions of power in a state or state-like entity and which attacks the very basis of the international community's coexistence. May include crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
Mrs Loizidou argued that the refusal by Turkish troops to allow her access to property she claimed to own in northern Cyprus violated her right to peaceful enjoyment of her property. The Court held that Turkey could be held responsible for what was a continuing violation of the right under Article 1 of Protocol No. 1.
Facts:
Mrs Loizidou lived and owned land in northern Cyprus prior to the Turkish occupation of the area. She brought a claim against Turkey arguing that she was still the legal owner of the land despite the legal provisions put in place by the constitution of the new Republic established there. She claimed that the Turkish forces had prevented and continued to prevent her from returning to northern Cyprus and peacefully enjoying her property. She argued that there had been violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention.
Decision & reasoning:
The first legal issue to decide was the objection ratione temporis raised by the Turkish government. As Turkey’s 1990 declaration under Article 46 of the Convention excluded the ECtHR’s jurisdiction in respect of facts occurring prior to the date of deposit, it had to be shown that alleged violations were not confined to prior to 1990 and were still continuing. In order to be continuing, Mrs Loizidou had to still be the legal owner of the land. As the Turkish Republic of Northern Cyprus (TRNC) was considered to be an illegal regime by the international community, the Court decided it could not find its 1985 Constitution to be legally valid. Hence the provisions (Article 159) expropriating property abandoned by refugees have not caused the applicant to lose title to her property and the objection ratione temporis failed.
The second issue was whether Turkey could be held responsible for the alleged violations. The Court held that under Article 1 of the Convention the concept of ‘jurisdiction’ is not restricted to the national territory of the Contracting States. Due to the large number of active duty Turkish troops in northern Cyprus, the Turkish army exercised effective overall control over that part of the island. This entailed Turkey’s responsibility for the TRNC’s policies and actions. Thus the continuing denial of Mrs Loizidou’s access to her property fell within Turkey’s ‘jurisdiction’ within the meaning of Article 1.
Thirdly, Article 1 of Protocol No. 1 was found to be applicable as the complaint was held to concern more than just freedom of movement. As she had been refused access since 1974, she had lost all control over and any possibilities to use and enjoy her property. While the exceptional circumstances of the case meant that the Court did not find a violation under the first or second paragraphs of the article, it held that the case fell within the meaning of the first sentence. Her lack of access amounted to violation just like a legal impediment: the Article had been and continued to be breached.
Article 8 was not found to have been violated as the property she owned could not be considered her ‘home’ because she had moved away from there before the occupation.
Finally, with regard to Article 50 the Court held it was not ready for decision due to the exceptional circumstances of the case.
Outcome:
Application granted with regard to Article 1 of Protocol No.1, denied with regard to Article 8 of the Convention, and held to be not ready for decision with regard to Article 50 of the Convention.
Subsequent proceedings:
Before the execution department of the Committee of Ministers the case is still open, notably in respect of the sums owed by the Turkish government which is still being contended by the applicant.
Observations/comments:
The various dissenting opinions from the judges should be noted. They generally focused on the legal and political complexity of the issue at hand which was not caused by Turkey alone, some arguing that it raised issues which went beyond the conceptual framework of the Convention. Other points included whether international non-recognition is enough to find TRNC Constitutional Provisions to be devoid of all legal effect.
This case summary was written by Tabatha Pinto, GDL student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Loizidou v Turkey (Application no. 40/1993 and 435/514) |
| ECtHR - Airey v Ireland, 9 October 1979, Series A No. 32 § 26 |
| ECtHR - Golder v United Kingdom, 21 February 1975, § 29, Series A No. 18 |
| ECtHR - Johnston and Others v. Ireland, Application No. 9697/82 |
| Klaas and Others v. Germany, no. 5029/71 |
| ECtHR- McCann and Others v. the United Kingdom, Application no. 18984/91 |
| ECtHR - Chrysostomos and Papachrysostomou v Turkey (Applications Nos. 15299/89 and 15300/89), 8 July 1993 |
| ECtHR - Gustafsson v Sweden (application no. 15573/89), 25 April 1996 |
| ECtHR - Agrotexim and Others v Greece (application no. 14807/89), 24 October 1995 |
| ECtHR - Papamichalopoulos and Others v Greece (application no. 14556/89), 24 June 1993 |
| UK - Polly Peck International Plc v Nadir (Asil) (No.2) Court of Appeal (Civil Division), 19 March 1992 |
| UK - Hesperides Hotels Ltd and Another v Aegean Turkish Holidays Ltd and Another [1977] |
Follower Cases:
Other sources:
- Vienna Convention on Law of Treaties - Article 21 para. 3 (c)
- European Court of Human Rights Rules of Court A - Rules 24 para. 3 and 51
- Commission decisions on admissibility of applications nos. 6780/74 and 6950/75, Cyprus v Turkey, 26 May 1975
- United Nations Security Council Resolution 541 (1983), Resolution 550 (1984)
- European Communities Statement of 16 November 1983
- Commonwealth Heads of Government press communiqué of 23 to 29 November 1983
- Turkish declaration of 22 January 1990 under Article 46 of the Convention
- Resolution DH (95) of 19 October 1995
- Advisory Opinion on Legal Consequences for States of the Continued Presence in South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16