Loizidou versus Turkey: Addressing the Extraterritorial Property Rights of Refugees
INTRODUCTION
If we say Loizidou v. Turkey is a simple judgement of international law, we would be incorrect. This is a judgement that attempts to bring a paradigm shift in how people extrapolate international law and its concepts. Acting on the primary testament, The European Convention of Protection of Human Rights, the Court paved a way on how refugee crises and grievances should be addressed. Even claims relating to extraterritorial property rights have also been answered with the help of this judgement.
This case depicts how a Cypriot national fights for her rights for her property occupied by Turkey due to the invasion of an area in the northern part of Cyprus. Decided in the year 1995 by the Grand Chamber of the European Court of Human Rights, the case also shows how the European Court puts its decisions in consonance with the Universal Declaration of Human Rights and work under a settled framework.
It was decided in favour of the applicant by Justice R Ryssdal and a bench comprising of seventeen other judges although a number of dissenting opinions also made place in the judgement and the judgement as a whole has been cited, argued and used many other times in determining issues related to property and refugees.
This piece attempts at analysing the events of the case and the complicated yet appropriate reasoning for the judgement to turn out in the manner it is. Although a case comment, this write-up tries to delve deeper into specific issues raised in the case and try juxtaposing the same with cited and other equivalent cases.
FACTS
The applicant, Mrs. Loizidou, was a Greek- Cypriot woman. She was brought up in Kyrenia and later, moved to Nicosia with her husband in 1972. She claimed to be owner of plots numbered 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 respectively[1]. She claimed that work had commenced on plot no. 4390 prior to the Turkish invasion of Kyrenia in northern Cyprus on 20th July 1974[2]. The applicant contended that Turkish troops have since then prevented her from returning to her land which she intended to use inter alia as her family home. On 19th March 1989, Mrs. Loizidou took part in a march[3] organised by women in a village called Lymbia, situated near the Turkish village of Akincilar in the partly inhabited areas of northern Cyprus. The applicant affirmed that even after performing the march which asserted the rights of Greek- Cypriot refugees to enjoy peacefully their land, the Turkish policemen prevented them from doing so thus violating their basic human rights. Adding to that, the Turkish policemen kept the applicant under detention for ten hours on crossing the ceasefire line. This too was challenged by the applicant[4].
Situation of the Turkish Troops
Closing down on the Turkish scenario, it has been affirmed that 30000 Turkish forces were stationed across the whole of Northern Cyprus and had patrolled checkpoints on all main lines of communication. The 28th Infantry Division was based in Asha (Assia) with its battalion covering Famagusta to Mia Milia suburb of Nicosia and with almost 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel was based at Myrtou village, and its battalion ranged from Yerolakkos village to Lefka. A Turkish naval command and outpost were based at Famagusta and Kyrenia respectively. Turkish Airforce personnel were based at Lefkoniko, Krini and other airfields. The Turkish Airforce was stationed on the Turkish main at Adana[5].
ANALYSIS OF THE JUDGEMENT
The preliminary arguments of the applicant were that there were violation of human rights contrary to what has been stated in Article 1 of Protocol No 1 and Article 8 of the European Court of Human Rights’ Convention for the Protection of Human Rights and Fundamental Freedom. The applicant claimed that even after the Constitution of The Turkish Region of Northern Cyprus (TRNC) was in force, the Turkish Government prevented the applicant from enjoying her property peacefully[6], thus violating her basic human rights. Now the first issue to be decided by the Grand Chamber[7] was the objection of ratione temporis[8], brought into account by the Turkish Government. Although on the pretext, a separate judgement by a lower court 23rd March 1995 was “On various preliminary objections raised by the Turkish Government (Series A no. 310), the Court dismissed an objection concerning alleged abuse of process; held that the facts alleged by the applicant were capable of falling under Turkish “jurisdiction” within the meaning of Article 1 of the Convention (European Convention of human Rights) and that the territorial restrictions attached to Turkey’s Articles 25 and 46 declarations were invalid but that the declarations contained valid acceptances of the competence of the Commission and Court. It also joined to the merits the preliminary objection “ratione temporis.”[9] Presently Turkey’s 1990 declaration under Article 46 of the Convention avoided the ECtHR’s discretion in regard of corporealities happening prior to the date of deposits. To counter the same it must be demonstrated that the supposed violations were not bound before 1990 were all the while continuing. It additionally must be demonstrated that Mrs. Loizidou still had lawful responsibility for land. As the TRNC was viewed as an unlawful system according to the global network, the Court appointed its 1985 Constitution not to be lawfully legitimate. Article 159(1)of the Constitution said:
“All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined and those 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.”[10]
Hence the provisions of Article 159(1) of the TRNC which expropriates property abandoned by refugees have not caused Loizidou to lose ownership and rights over her property and the objection of ratione temporis failed.
The second issue before the court was whether Turkey could be held responsible for the alleged violations. Article 1 of the European Convention of Human Rights says:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
The Court held that under Article 1 of the Convention the idea of ‘jurisdiction’ isn’t limited to the national region of the Contracting States. Because of the plenty of dynamic Turkish troops and various military settlements in the northern district of Cyprus the Turkish armed force practiced compelling by and large power over that piece of the land. This involved Turkey’s obligation regarding the TRNC’s approaches and activities. Subsequently the proceeding with disavowal of Mrs Loizidou’s entrance to her property fell inside Turkey’s ‘jurisdiction’ inside the significance of Article 1. Whether the acts committed by a states’ agents in the territory of another state but over which the first state has temporary effective authority and control were the responsibility of the first state[11]. The issue of jurisdiction has been taken up under Article 1 in many other cases such as Ocalan v Turkey[12], Bankovic v Belgium[13] and Al-Skeini and Others v Secretary of State for Defence[14] and various courts have interpreted it in different ways. Hence by virtue of these, Turkey was held responsible for the violation of human rights in Cyprus.
Thirdly, Article 1 of Protocol №1 was observed to be material as the grievance was held to concern something beyond opportunity of development. As she had been rejected access since 1974, she had lost all power over and any potential outcomes to utilize and make the most of her property . While the extraordinary conditions of the case implied that the Court did not discover an infringement under the first or second sections of the article, it held that the case fell inside the significance of the main sentence. Her absence of access added up to infringement simply like a legitimate obstacle: the Article had been and kept on being infringed. Protocol 1 of the conventions says:
“ 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 (P1–1) 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.”
As indicated by international law, in the applicant’s accommodation, the State which is perceived as responsible in regard of a specific domain stays responsible regardless of whether the region is controlled by a neighbourhood organization. This was the legitimate position whether the nearby organization is illicit, in that it is the outcome of an unlawful utilization of power, or whether it is legal, as on account of an ensured State or other reliance. A State can’t by designation keep away from duty regarding breaking of its obligations under international law, particularly not for breaches of its obligations under the Convention which, as shown by the language of Article 1 of the Convention, includes an assurance to verify Conventional rights[15]. Hence it was ascertained that Mrs. Loizidou’s rights were breached in contravention to what has been stated in the protocol.
The fourth issue arose regarding Article 8 of the Convention. The article says;
“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.”[16]
In the context of ‘home’ the Court gave a varied opinion. It suggested that Article 8 was not found to have been breached as the property she possessed couldn’t be termed as her ‘home’ since she had moved away from that point before the occupation. A similar contention arose in the case of Niemietz v Germany[17]. In this case the ECHR was of the view that ‘home’ for a person qualifies if only he/she is of a frequent use or resident of the same; or carries out his/her mode of livelihood for example a doctor’s chamber or a lawyer’s office qualify as ‘home’ for them. Hence Loizidou’s claim for her ‘home’ has been negatived by the ECHR. Same observations have been corroborated in another case law such as Hesperides Hotels Ltd and Another v Aegean Turkish Holidays Ltd and Another[18].
Final decree passed: “Application granted with regard to Article 1 of Protocol №1, denied with regard to Article 8 of the Convention.”[19]
CONCLUSION
The above judgement succeeds to be branded as a landmark judgement in International Law as it has brought many new dimensions in International Law and its applications. With the help of many other landmark cases, it has been determined in this case that the applicant Mrs. Loizidou, who had a property in the Turkey occupied northern Cyprus, was entitled to enjoy it but the Turkish Government through its military force caused hindrances thus violating human rights as enumerated under the European Convention of Protection of Human Rights. The Chamber assented that the claimant had property rights. On the issue of ratione temporis, the Court observed that even though Turkey contended that ECHR had no jurisdiction, the justification provided that the hindrances were still being caused and not long gone, hence bringing the case under its purview on the context of human rights violation.
Other things that came into the forefront with this case were property rights, illegal detentions, extraterritorial jurisdiction, refugee rights and humanitarian exigencies which are very much relevant in today’s world. The whole of the case has been governed part by part as per the European Convention and it was found Turkey was guilty of multiple human rights violation events and hence responsibilities and powers of a State has also been demarcated with the help of this case. It is expected of a State to remain within drawn limits and structural framework drawn to build better relations with other countries.
The different contradicting assessments from the judges ought to likewise be noted. They by and large centered around the lawful and political multifaceted nature of the current issue which was not brought about by Turkey alone, some contending that it raised issues which went past the theoretical system of the Convention. Different focuses included whether global non-acknowledgment is sufficient to observe TRNC Constitutional Provisions to be without all legitimate impact[20].
[1] Loizidou v. Turkey 40/1993/435/514.
[2] Ibid.
[3] The “march” here is referred to one of the many solo march which took place as part of the “Women Walk Home Movement” which boomed during the period 1988–89 post the Turkish invasion of Cyprus as many Cypriot nationals were rendered homeless.
[4] Judith Hippler Bello et al., Loizidou v. Turkey — Questions of Territorial Jurisdiction, 90 The American Journal of International Law, 98 (1996).
[5] Supra, note 1.
[6] (Jul 11, 2019, 10:35 PM) https://www.asylumlawdatabase.eu/en/content/ecthr-loizidou-v-turkey-application-no-1531889-18-december-1996.
[7] The highest jurisdictional body of the European Court of Human Rights (ECtHR).
[8] The jurisdiction ratione temporis or temporal jurisdiction accounts for the jurisdiction of a judicial body or a court of law over a proposed action in relation to the passage of time.
[9] Supra, note 1.
[10] Ibid.
[11] Issa and Ors. v Turkey, [2004] ECHR 629.
[12] (2004) 41 EHRR 985.
[13] Bankovic v. Belgium (2007).
[15] Supra, note 1.
[16] European Convention of Human Rights 1950.
[17] ECHR 16 Dec 1992.
[18] ECHR 1977.
[19] MALCOLM N SHAW, INTERNATIONAL LAW 236, 349, 354, 360, 790 (6th ed. 2008).
[20] Ibid.
