EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15318/89
Titina Loizidou
against Turkey
REPORT OF THE COMMISSION
(adopted on 8 July 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 27) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 22). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 23 - 27) . . . . . . . . . . . . . . . . . . . . 3
II. ESTABLISHMENT OF THE FACTS
(paras. 28 - 45) . . . . . . . . . . . . . . . . . . . . . . 5
A. The particular circumstances of the case
(paras. 28 - 37) . . . . . . . . . . . . . . . . . . . . 5
1. Possessions (paras. 29 - 30) . . . . . . . . . . . 5
2. Deprivation of liberty
(paras. 31 - 35) . . . . . . . . . . . . . . . . . 5
3. Responsibility of Turkey
(paras. 36 - 37) . . . . . . . . . . . . . . . . . 6
B. The evidence before the Commission
(paras. 38 - 42) . . . . . . . . . . . . . . . . . . . . 6
1. Evidence concerning the applicant's
possessions (para. 38) . . . . . . . . . . . . . . 6
2. Evidence concerning the demonstration of
19 March 1989 (paras. 39 - 42) . . . . . . . . . . 7
a) Report of the Secretary-General of the
United Nations (para. 39) . . . . . . . . . . 7
b) Witnesses (paras. 40 - 42). . . . . . . . . . 7
aa The applicant (para. 40). . . . . . . . 7
bb Witness proposed by the
applicant (para. 41). . . . . . . . . . 8
cc Other evidence (para. 42) . . . . . . . 8
C. The relevant domestic law
(paras. 43 - 45) . . . . . . . . . . . . . . . . . . . . 8
1. Procedural law (para. 43). . . . . . . . . . . . . 8
2. Substantive law relied on by the
respondent Government (paras. 44 - 45) . . . . . . 8
III. OPINION OF THE COMMISSION
(paras. 46 - 106) . . . . . . . . . . . . . . . . . . . . . .10
A. Complaints declared admissible
(para. 46) . . . . . . . . . . . . . . . . . . . . . . .10
B. Points at issue
(para. 47) . . . . . . . . . . . . . . . . . . . . . . .10
C. Arrest and detention
(paras. 48 - 85) . . . . . . . . . . . . . . . . . . . .10
1. Imputability (paras. 48 - 51). . . . . . . . . . .10
2. Articles 3 and 8 of the Convention
(paras. 52 - 72) . . . . . . . . . . . . . . . . .11
a) The character of the demonstration
(paras. 55 - 58). . . . . . . . . . . . . . .11
b) The treatment of the applicant -
evaluation of the evidence
(paras. 59 - 62). . . . . . . . . . . . . . .12
c) Application of Article 3 of the
Convention to the facts established
(paras. 63 - 64). . . . . . . . . . . . . . .12
Conclusion (para. 65). . . . . . . . . . . . . . .12
d) Application of Article 8 of the
Convention to the facts established
(paras. 66 - 71). . . . . . . . . . . . . . .12
Conclusion (para. 72). . . . . . . . . . . . . . .13
3. Article 5 para. 1 of the Convention
(paras. 73 - 85). . . . . . . . . . . . . . . . .13
a) Deprivation of liberty "in accordance
with a procedure prescribed by law"
(paras. 76 - 79). . . . . . . . . . . . . . .14
b) Justification of the arrest and detention
under Article 5 para. 1 (f) of the
Convention
(paras. 80 - 83). . . . . . . . . . . . . . .14
c) Other issues under Article 5 para. 1
(para. 84). . . . . . . . . . . . . . . . . .15
d) Conclusion (para. 85) . . . . . . . . . . . .15
D. Access to property
(paras. 86 - 101). . . . . . . . . . . . . . . . . . . .15
1. Article 8 of the Convention
(paras. 86 - 89) . . . . . . . . . . . . . . . . .15
a) Interference with home
(paras. 86 - 88). . . . . . . . . . . . . . .15
b) Conclusion (para. 89) . . . . . . . . . . . .15
2. Article 1 of Protocol No. 1
(paras. 90 - 101). . . . . . . . . . . . . . . . .16
Conclusion (para. 101) . . . . . . . . . . . . . .17
E. Recapitulation (paras. 102 - 106). . . . . . . . . . . .17
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF
MM. NØRGAARD, JÖRUNDSSON, GÖZÜBÜYÜK, SOYER AND
DANELIUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
PARTLY CONCURRING, PARTLY DISSENTING OPINION
OF MR. C.L. ROZAKIS . . . . . . . . . . . . . . . . . . . . . . . .19
PARTIALLY DISSENTING OPINION OF MR. M.P. PELLONPÄÄ. . . . . . . . .21
APPENDIX I: HISTORY OF PROCEEDINGS . . . . . . . . . . . . . . . .23
APPENDIX II: DECISION ON THE ADMISSIBILITY . . . . . . . . . . . .26
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Cypriot citizen born in 1949 and residing at
Nicosia. She is represented by Mr. Achileas Demetriades, a lawyer
practising in Nicosia.
3. The application is directed against Turkey. The respondent
Government were initially represented by their Agent, Prof. S. Bilge,
and subsequently by their Acting Agent, Mr. S. Özmen, both of the
Ministry of Foreign Affairs. They are now represented by their Agent,
Prof. B. Çaglar.
4. The application concerns the applicant's deprivation of liberty
on 19 March 1989, and access to her property, in the northern part of
Cyprus. The applicant alleged violations of Article 3 and Article 5 of
the Convention and a continuing violation of Article 8 of the
Convention and Article 1 of Protocol No. 1. She claims that all acts
complained of were carried out by Turkish military forces stationed in
the northern part of Cyprus or by forces acting under their authority.
B. The proceedings
5. The application was introduced on 22 July and registered on
31 July 1989.
6. On 9 November 1989 the Commission ordered the joinder of the
present application and of Applications No. 15299/89 (Metropolitan
Chrysostomos v. Turkey) and No. 15300/89 (Archimandrite
Papachrysostomou v. Turkey). It further decided to bring the
applications to the notice of the respondent Government and to invite
them to submit written observations on the applications. The
Government's observations were filed on 28 February 1990. The
applicant's observations in reply were filed on 11 May 1990.
7. On 5 October 1990 the Commission decided to invite the parties
to a hearing.
8. The applicant filed further written submissions on
18 December 1990.
9. At the hearing on 11 January 1991 the respondent Government were
represented by Prof. S. Bilge as Agent, Prof. H. Golsong and
Prof. E. Lauterpacht as Counsel and by Mr. M. Özmen and Dr. D. Akçay,
both of the Ministry of Foreign Affairs, and Mr. D. Bethlehem,
Barrister, as Experts. The applicant was represented by Mr. Demetriades
and Prof. I. Brownlie, Q.C. and Mrs. Joanna Loizidou, Barrister, as
Counsel. The applicant was also present.
10. On 4 March 1991 the Commission declared inadmissible the
applicant's complaints of continuing violations of Article 8 of the
Convention and Article 1 of Protocol No. 1 alleged to have occurred
before 29 January 1987. The remainder of the application was declared
admissible.
11. The respondent Government were then invited to submit their
observations on the merits of the application. Under cover of a letter
of 7 May 1991 they submitted a memorandum requesting the Commission "to
re-open the proceedings on the admissibility" of the application and
"to find that (it) is inadmissible". The applicant's comments on this
request were filed on 24 May 1991.
12. On 30 May 1991 the Commission found no legal basis for the
respondent Government's request. It invited the Government to submit
their observations on the merits, including their evidence, no later
than 29 July 1991. At the Government's request this time-limit was
subsequently extended to 30 September 1991.
13. In a letter transmitted on 25 September 1991, the respondent
Government informed the Commission that they would not participate in
any further proceedings concerning the present application.
14. On 16 October 1991 the Commission adopted an Interim Report on
the present state of the proceedings in which it requested the
Committee of Ministers to urge Turkey, as a High Contracting Party to
the Convention, to meet its obligations and accordingly to participate
in the Commission's examination of the merits of the present
application, as required by Article 28 para. 1.
15. On 19 December 1991 the Committee of Ministers adopted Resolution
DH (91) 41, in which it urged Turkey, as a High Contracting Party to
the Convention, to meet its obligations and accordingly to participate
in the Commission's examination of the merits of the present
application as required by Article 28 para. 1.
16. On 14 January 1992 the Commission decided to take oral evidence
of the applicant at a hearing of witnesses before delegated members of
the Commission in the presence of the parties in Strasbourg; and to
invite the parties to file, within a time-limit of six weeks, such
further observations as they wished to make.
17. On 9 April 1992 the Commission appointed its Delegation for the
hearing of witnesses. It decided to include in the list of witnesses
to be examined the person proposed in the applicant's submissions of
24 March 1992. Further submissions in writing were filed by the
respondent Government on 20 May and by the applicant on 5 June 1992.
18. At the hearing on 9 and 10 June 1992 the Delegation (MM. Frowein,
Busuttil and Pellonpää) heard the applicant and the witness proposed
by her.
19. On 7 July 1992 the Commission decided to hold a hearing on the
merits of the applications. Further submissions in writing were filed
by the applicant on 28 September and by the respondent Government on
1 October 1992.
20. At the hearing on 4 December 1992 the applicant was represented
by Mr. Demetriades, Prof. Brownlie and Mrs. J. Loizidou. The respondent
Government were represented by Prof. B. Çaglar as Agent, Mr. Özmen,
Dr. Akçay, Prof. Golsong and Mr. A. Sait as Counsel, and
Mrs. G. Erönen, Mr. O. Örek and Mrs. I. Tokcan as Experts. During the
hearing the parties were given the opportunity to make supplementary
submissions under Article 8 of the Convention with regard to the
applicant's complaint concerning her arrest. At the end of the hearing
the Commission accepted, as further written submission, a "Note
d'Audience" filed by the respondent Government shortly before the
hearing and invited the parties to file, before 31 January 1993, such
final submissions in writing as they might wish to make.
21. On 7 December 1992 the Commission decided to disjoin the present
application from Applications Nos. 15299/89 and 15300/89 (cf. para. 6
above). The applicant's final submissions were dated 28 January and
those of the Government 29 January 1993.
22. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
23. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes in plenary session, the following members being
present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
M.P. PELLONPÄÄ
24. The text of this Report was adopted on 8 July 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
25. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
26. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
27. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
28. The applicant grew up in Kyrenia in northern Cyprus. In 1972 she
married and moved with her husband to Nicosia.
1. Possessions
29. The applicant states that she is the owner of plots of land
Nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in
Kyrenia in northern Cyprus. Before 20 July 1974 work had commenced on
plot No. 5390 for the construction of a home for the applicant. She has
been prevented in the past, and is still prevented, by Turkish forces
from returning to, and peacefully enjoying, the said properties.
30. The respondent Government state that, after 15 July 1974, there
was an agreement for exchange of Turkish and Greek Cypriots. Turks
living in the south were allowed to come to the north of the island and
the Greeks living in the north were allowed to go to the south. The
properties of the communities concerned were taken over by the
administrative authorities on both sides. The question of Greek Cypriot
properties in the north and Turkish Cypriot properties in the south is
a matter discussed within the framework of the intercommunal talks. The
applicant has not been residing in the "Turkish Republic of Northern
Cyprus". Her allegation that she went there to claim her property is
false.
2. Deprivation of liberty
31. The applicant states that she participated in each of the four
marches organised by the "Women Walk Home" movement. The last
demonstration was on 19 March 1989 at the location of Lymbia. The
applicant, leading a group of some fifty participants in the march,
advanced towards the Church of the Holy Cross (Stavros) in the Turkish-
occupied part of Cyprus. They passed the United Nations' guard post,
but further on unarmed Turkish soldiers tried to prevent them from
continuing. The group persisted, but when they reached the churchyard
the soldiers surrounded them and they were unable to move any further
up the hill.
32. The applicant further states that the Turkish army was gradually
replaced by members of the Turkish Cypriot police force, who advanced
wearing helmets and carrying shield and clubs. The applicant was pushed
down the hill and two policemen took hold of her. She was carried round
to the west side of the hill and deposited on the ground with other
women. A Turkish officer who was in charge of the situation asked them
if they needed anything. Two United Nations' officers were also there
to reassure the women that they would make all the necessary
arrangements for their release. The women sat there for about two
hours, while negotiations took place between the United Nations'
representatives, the Turkish army, and the police.
33. Eventually, the group was split up and the applicant was put into
an ambulance with six or seven other women. They were escorted by two
Turkish Cypriot policewomen and a United Nations' officer. The
ambulance took them first to the village of Lourougina, where a great
many Turkish Cypriots and settlers (identifiable by their clothes) were
demonstrating - apparently a pre-arranged counter-demonstration. They
were held up in a traffic jam, with some of these people banging on the
ambulance and gesticulating at the women to go away. The applicant felt
insulted and she felt that her life was under threat. The ambulance
stopped at the Lourougina police station at the north entrance of the
village. Turkish commandos in blue berets were lined up there.
34. The car went back to Nicosia. Near the Ledra Palace they waited
for a further two hours or more. Before their release they passed one
by one before a United Nations' doctor, who asked if anyone had been
injured. The applicant had nothing to report on that score. She was
released around midnight, having been detained for more than ten hours.
35. The respondent Government state that on 19 March 1989 the women's
"Return" movement of the Greek Community of Nicosia organised an anti-
Turkish demonstration. About 1,000 women got into about 80 busses and
departed from the town centre. About 15 of these busses went to Lymbia,
near the Turkish village of Akincilar in the "Turkish Republic of
Northern Cyprus". From Lymbia the demonstrators after violating the
buffer-zone marched into the territory of the "Turkish Republic of
Northern Cyprus". They were warned by loud speakers to leave the area
but refused. Upon this refusal 29 persons including the applicant were
arrested. They were brought by Turkish Cypriot police, accompanied by
Australian police serving with UNFICYP, to Nicosia where they were
handed over to U.N. officials and taken over to the Greek Cypriot Area.
3. Responsibility of Turkey
36. The applicant claims that the acts complained of were carried out
by Turkish military forces stationed in the northern part of Cyprus or
by forces acting under their authority.
37. The respondent Government do not find it established that Turkish
officials have exercised any control over the issue of property which
Greek Cypriots left behind in Northern Cyprus, the administration of
such property and their possible future disposition, or that Turkish
troops which may have been involved in the border incident of
19 March 1989 have acted outside the instructions of the constitutional
authorities of the "Turkish Republic of Northern Cyprus".
B. The evidence before the Commission
1. Evidence concerning the applicant's possessions
38. The applicant has submitted copies of certificates of
registration of immovable property.
2. Evidence concerning the demonstration of 19 March 1989
a) The report of the Secretary General of the United Nations
39. In his report of 31 May 1989 - Security Council document S/20663
- on the United Nations Operation in Cyprus (for the period
1 December 1988 - 31 May 1989) the Secretary-General of the United
Nations referred to the demonstration on 19 March 1989 in the following
terms (at para. 11):
"11. In March 1989, considerable tension occurred over the well-
publicized plans of a Greek Cypriot women's group to organize a
large demonstration with the announced intention of crossing the
Turkish forces cease-fire line. In this connection it is relevant
to recall that, following violent demonstrations in the United
Nations buffer-zone in November 1988, the Government of Cyprus
had given assurances that it would in future do whatever was
necessary to ensure respect for the buffer-zone ... Accordingly,
UNFICYP asked the Government to take effective action to prevent
any demonstrators from entering the buffer-zone, bearing in mind
that such entry would lead to a situation that might be difficult
to control. The demonstration took place on 19 March 1989. An
estimated 2,000 crossed the buffer-zone at Lymbia and some
managed to cross the Turkish forces' line. A smaller group
crossed that line at Akhna. At Lymbia, a large number of Turkish
Cypriot women arrived shortly after the Greek Cypriots and
mounted a counter demonstration, remaining however on their side
of the line. Unarmed Turkish soldiers opposed the demonstrators
and, thanks largely to the manner in which they and the Turkish
Cypriot police dealt with the situation, the demonstration passed
without serious incident. Altogether, 54 demonstrators were
arrested by Turkish Cypriot police in the two locations; they
were released to UNFICYP later the same day."
b) Witnesses
aa The applicant
40. The applicant, when heard as a witness, stated that she
participated in the march organised by the organisation "Women Walk
Home" on 19 March 1989. From Nicosia the demonstrators drove to the
village Lymbia. In their march they passed by a United Nations post and
walked up towards the top of a hill, where they were stopped by unarmed
Turkish soldiers. The demonstrators sat down. After some time the
Turkish soldiers were replaced by Turkish Cypriot policemen. The
policemen arrested the applicant and other women. The applicant had no
injuries. There was no physical violence. The applicant felt insecure.
A Turkish officer asked her whether she needed anything. The police
wanted to know the names of the arrested persons. The women preferred
to hand a list with the names to a sergeant of the United Nations for
security reasons. The women waited for two or three hours. Then they
were put in a car. They were altogether 32 women. Turkish Cypriot
civilians insulted them. As the women were driven away the applicant
saw Turkish soldiers.
bb Witness proposed by the applicant
41. Witness A. Moysseos, referring to photographs he had taken of the
incident on 19 March 1989, stated that violence was used to arrest the
women.
cc Other evidence
42. The applicant has submitted maps, photographs and other
documents.
C. The relevant domestic law
1. Procedural law
43. Criminal Procedure Law, Chapter 155, Section 14 (legislation
enacted in Cyprus under British rule and still in force today) states:
"(1) Any officer may, without warrant, arrest any
person -
...
(b) who commits in his presence any offence
punishable with imprisonment;
(c) who obstructs a police officer, while in the
execution of his duty ..."
2. Substantive law relied on by the respondent Government
44. Aliens and Immigration Law (1952), Section 12
"(1) No person shall enter or leave the Colony except
through an approved port.
(2) A person entering the Colony by sea shall not disembark
without the consent of the immigration officer ...
(3) Every person entering the Colony as a passenger by air
shall forthwith present himself in person to the nearest
immigration officer.
...
(5) Any person who contravenes or fails to observe any of
the provisions of subsections (1), (2), (3) or (4) of this
section shall be guilty of an offence and shall be liable
to imprisonment for a term not exceeding six months or to
a fine not exceeding one hundred pounds or to both such
imprisonment and fine."
45. Prohibited Military Areas Decree of 1979
(translation)
"Section 3: Definitions
a. Prohibited military areas:
(1) Military area No. 1:
This area is situated between the frontier (contact line)
and the line picked out by the markings placed at a
distance of 500 metres from the frontier (contact line).
..."
"Section 9
... Any persons who enters a prohibited military area without
authorization, or by stealth, or fraudulently, shall be tried by
a military court in accordance with the Military Offences Act;
those found guilty shall be punished."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
46. The Commission has declared admissible the applicant's complaints
concerning her arrest and detention on 19 March 1989 and access to her
property. In its decision on the admissibility (see below p. 36) the
Commission noted the applicant's claim that the acts complained of
"were carried out by Turkish military forces stationed in the northern
part of Cyprus or by forces acting under their authority".
B. Points at issue
47. The Commission considers that the issues now to be determined
are:
1. with regard to the applicant's arrest and detention:
a) whether there has been a violation of Article 3
(Art. 3) of the Convention;
b) whether there has been a violation of Article 8
(Art. 8) of the Convention, as regards the applicant's
private life;
c) whether there has been a violation of Article 5
para. 1 (Art. 5-1) of the Convention;
2. with regard to access to property:
a) whether there has been a violation of Article 8
(Art. 8) of the Convention, as regards the applicant's
home;
b) whether there has been a violation of Article 1 of
Protocol No. 1 (P1-1) to the Convention.
C. Arrest and detention
1. Imputability
48. The applicant claims that her arrest and detention on
19 March 1989 were carried out by Turkish military forces stationed in
the northern part of Cyprus or by forces acting under their authority.
49. The respondent Government do not deny that Turkish troops were
involved in that incident.
50. The Commission, having regard to the report of the Secretary-
General of the United Nations (para. 39 above), finds it established
that Turkish soldiers were involved in the applicant's arrest and
detention.
51. It follows that the applicant's arrest and detention on
19 March 1989 are imputable to Turkey.
2. Articles 3 and 8 (Art. 3,8) of the Convention
52. With regard to her treatment during her arrest and detention the
applicant alleges a breach of Article 3 (Art. 3) of the Convention
which provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
53. The Commission has considered the applicant's complaint
concerning her treatment during her arrest and detention also under
Article 8 (Art. 8) of the Convention (cf. para. 20 above), which
provides as follows:
"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."
54. In the present case the Commission is confronted with different
versions as regards the events on 19 March 1989.
a) The character of the demonstration
55. The Commission notes the descriptions of the events given in the
submissions by the applicant (see paras. 31 - 34 above) and by the
respondent Government (see para. 35 above).
56. The Commission further notes the evidence given by the applicant
(see para. 40 above) and the photographs submitted by her
(cf. paras. 41 and 42 above).
57. The Commission attaches particular weight to the evidence
contained in the report of the Secretary-General of the United Nations.
He stated that "considerable tension occurred over the well-publicized
plans of a Greek Cypriot women's group to organize a large
demonstration with the announced intention of crossing the Turkish
forces cease-fire line" and he described the demonstration as follows:
"An estimated 2,000 crossed the buffer-zone at Lymbia and some managed
to cross the Turkish forces' line. A smaller group crossed that line
at Akhna. At Lymbia, a large number of Turkish Cypriot women arrived
shortly after the Greek Cypriots and mounted a counter demonstration,
remaining however on their side of the line. Unarmed Turkish soldiers
opposed the demonstrators and, thanks largely to the manner in which
they and the Turkish Cypriot police dealt with the situation, the
demonstration passed without serious incident" (see para. 39 above).
58. In the light of the above evidence the Commission finds that the
demonstration constituted a serious threat to peace and public order
on the demarcation line in Cyprus.
b) The treatment of the applicant - evaluation of the evidence
59. The applicant submits that her arrest and detention constituted
degrading treatment, in particular because of the way she was seized
and brought to Nicosia under escort, a prisoner in her own country. She
felt that her life was threatened and she was insulted by the crowd
while she was in the ambulance.
60. The respondent Government state that the applicant was treated
properly.
61. The Commission notes the applicant's description of the
circumstances of her arrest and her detention (paras. 31 ff. and 40
above) and the evidence given by a witness proposed by her (see
para. 41 above).
62. The Commission observes that the applicant passed before a United
Nations' doctor and did not claim to have suffered any injuries.
Moreover, two United Nations officers were present during her arrest
and she was accompanied by a United Nations officer when transported
in the ambulance.
c) Application of Article 3 (Art. 3) of the Convention to the
facts established
63. The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is, in the nature of things,
relative; it depends on all the circumstances of the case, such as the
nature and context of the treatment, the manner and method of its
execution, its duration, its physical or mental effects and, in some
instances, the sex, age and state of health of the victim (Eur. Court
H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 39,
para. 100, with further references).
64. The Commission does not find that the treatment to which the
applicant was subjected during her arrest and detention attained a
level of severity which was sufficient to bring it within the ambit of
Article 3 (Art. 3).
Conclusion
65. The Commission concludes unanimously that there has been no
violation of Article 3 (Art. 3) of the Convention.
d) Application of Article 8 (Art. 8) of the Convention to the
facts established
66. The Commission observes that, as deprivations of liberty, arrest
and detention primarily fall to be considered under Article 5 (Art. 5)
of the Convention.
67. With regard to Article 8 (Art. 8) the Commission recalls that a
person's "private life" includes his or her physical integrity
(cf. e.g. Eur. Court H.R., X and Y v. the Netherlands judgment of
26 March 1985, Series A no. 91, p. 11, para. 22; No. 8239/78,
Dec. 4.12.78, D.R. 16 p. 184 at p. 189; No. 8278/78, Dec. 13.12.79,
D.R. 18 p. 154; No. 10435/83, Dec. 10.12.84, D.R. 40 p. 251).
68. The Commission has therefore examined whether the treatment to
which the applicant was subjected during her arrest and detention
constituted an "interference" with her right, under Article 8 (Art. 8),
to respect for her private life, which was not justified under para. 2
of that Article (Art. 8-2).
69. The Commission considers that arrest and detention may affect the
physical integrity, and thus the private life, of the arrested person,
However, not every act or measure which may be said to affect adversely
the physical or moral integrity of a person necessarily gives rise to
an interference with the right to respect for private life (cf. Eur.
Court H.R., Costello-Roberts v. the United Kingdom judgment of
25 March 1993, Series A no. 247-C, para. 36).
70. The Commission has found above (at para. 64) that the treatment
to which the applicant was subjected during her arrest and detention
did not attain a level of severity which was sufficient to bring it
within the ambit of Article 3 (Art. 3).
71. Even assuming, under Article 8 (Art. 8) of the Convention, that
the applicant's arrest interfered with her private life, the Commission
does not find that this interference exceeded the limits of what in the
circumstances could reasonably be considered as "necessary", in the
interest of public safety and for the prevention of disorder, within
the meaning of second paragraph of this article.
Conclusion
72. The Commission concludes by eleven votes to two that there has
been no violation of Article 8 (Art. 8) of the Convention, as regards
the applicant's private life.
3. Article 5 para. 1 (Art. 5-1) of the Convention
73. Article 5 para. 1 (Art. 5-1) of the Convention provides as
follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so;
...
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of
a person against whom action is being taken with a view to
deportation or extradition."
74. The applicant submits that she was not arrested and detained "in
accordance with a procedure prescribed by law" and that none of the
grounds of lawful arrest and detention envisaged in para. 1 of
Article 5 (Art. 5-1) were present. In particular, there was no
reasonable suspicion of an offence in the normal sense having been
committed nor any necessity to prevent the commission of such an
offence or to prevent subsequent flight. The alleged offence was of an
artificial character relating to the "frontiers" of an illegal entity.
The Turkish armed forces and their agents had no authority to arrest
and detain the applicant.
75. The respondent Government submit that Article 5 para. 1
(Art. 5-1) was complied with. When arresting the applicant on the
territory of the "Turkish Republic of Northern Cyprus", the police
acted under the relevant provisions of domestic law (cf. paras. 43 ff.
above). The authorities used the powers conferred on them in the
context of international arrangements concerning the buffer-zone in
Cyprus. In the respondent Government's view the Commission is not
required to examine the validity or legitimacy of the legal system of
the "Turkish Republic of Northern Cyprus" but only the question whether
an effective legal system exists in that area. The arrest and detention
of the applicant were justified under Article 5 para. 1 (Art. 5-1).
a) Deprivation of liberty "in accordance with a
procedure prescribed by law"
76. The Commission has examined whether the applicant was deprived
of her liberty "in accordance with a procedure prescribed by law", as
required by Article 5 para. 1 (Art. 5-1). It recalls that, on the
question whether an arrest is "lawful", including whether it complies
with "a procedure prescribed by law", the Convention refers back
essentially to national law and lays down the obligation to conform to
the substantive and procedural rules thereof. However, it requires in
addition that any deprivation of liberty should be consistent with the
purpose of Article 5 (Art. 5), namely to protect individuals from
arbitrariness (see Eur. Court H.R., Wassink judgment of
27 September 1990, Series A no. 185-A, p. 11, para. 24, with further
references).
77. As regards domestic law in Cyprus, the Commission notes that,
under Chapter 155, Section 14, para. 1, sub-paras. b and c of the
Criminal Procedure Law (cf. para. 43 above), any police officer may,
without warrant, arrest any person who commits in his presence any
offence punishable with imprisonment or who obstructs a police officer,
while in the execution of his duty.
78. The Commission further notes that the applicant, having crossed
the buffer-zone, was arrested in northern Cyprus by Turkish Cypriot
policemen (cf. paras. 39 f. above).
79. Having regard to the above elements, the Commission finds that
the arrest and detention of the applicant in Cyprus, by police officers
acting under Chapter 155, Section 14 of the Criminal Procedure Law,
took place "in accordance with a procedure prescribed by law", as
required by Article 5 para. 1 (Art. 5-1) of the Convention.
b) Justification of the arrest and detention under
Article 5 para. 1 (f) (Art. 5-1-f) of
the Convention
80. Article 5 para. 1 (f) (Art. 5-1-f) of the Convention permits the
lawful arrest and detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action
is being taken with a view to deportation or extradition.
81. The applicant argues that she was arrested when crossing the
"frontiers" of an illegal entity.
82. The Commission finds that it is not in this connection required
to examine the status of the "Turkish Republic of Northern Cyprus". It
notes that the demonstration on 19 March 1989, in the course of which
the applicant was arrested in northern Cyprus, constituted a violation
of the arrangements concerning the respect of the buffer-zone in Cyprus
(cf. para. 39 above). The provisions under which the applicant was
arrested and detained (see paras. 43 - 45 above) served to protect this
very area. This cannot be considered as arbitrary.
83. The Commission therefore finds that the applicant's arrest and
detention were justified under Article 5 para. 1 (f) (Art. 5-1-f), as
applied to the regime created in Cyprus by international agreements
concerning the buffer-zone.
c) Other issues under Article 5 para. 1 (Art. 5-1)
84. In view of its above finding the Commission does not consider it
necessary to examine whether the applicant's arrest and detention were
also justified under Article 5 para. 1 (c) (Art. 5-1-c).
d) Conclusion
85. The Commission concludes by nine votes to four that there has
been no violation of Article 5 para. 1 (Art. 5-1) of the Convention.
D. Access to property
1. Article 8 (Art. 8) of the Convention
a) Interference with home
86. Article 8 para. 1 (Art. 8-1) of the Convention provides that
everyone has the right to respect for his home.
87. The applicant states that she intended to develop the property
her father had given her in Kyrenia and return there to live.
Construction had begun on plot No. 5390 and one of the flats was
intended for her family. She submits that the continuous prevention of
her return to this flat which would eventually become a home
constitutes a continuous violation of Article 8 (Art. 8).
88. The Commission notes that the applicant left Kyrenia in 1972 and
moved to Nicosia, her present residence. Since 1972 her home has not
been in Kyrenia. The fact that she is prevented from returning to
Kyrenia does therefore not affect her right to respect for her home
within the meaning of Article 8 (Art. 8) (cf. the decision on
admissibility, below p. 62, para. 69).
b) Conclusion
89. The Commission concludes by nine votes to four that there has
been no violation of Article 8 (Art. 8) of the Convention, as regards
the applicant's home.
2. Article 1 of Protocol No. 1 (P1-1)
90. Article 1 of Protocol No. 1 (P1-1) to the Convention provides:
"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."
91. The applicant submits that Turkey, through the use of its armed
forces and by the continued occupation and control of part of Cyprus
and by prohibiting the applicant on a number of occasions from gaining
access to the said part of Cyprus and consequently to the property in
question, has affected the rights of the applicant as property owner
and in particular her right to peaceful enjoyment of her possessions,
contrary to Article 1 of Protocol No. 1 (P1-1), thus constituting a
continuing violation of the said Article.
92. The Commission recalls that it has declared inadmissible the
applicant's complaint of a continuing violation of Article 1 of
Protocol No. 1 (P1-1) alleged to have occurred before 29 January 1987
(cf. decision on admissibility, below p. 62).
93. The Commission notes that the applicant has since that date been
prevented from gaining access to the north of Cyprus.
94. The Commission finds it established that this is due to the
presence of Turkish forces in Cyprus who exercise an overall control
in the border area.
95. The Commission therefore finds that the refusal of access to
property in the north of Cyprus, of which the applicant complains, is
imputable to Turkey.
96. The Commission must consequently examine whether this complaint
raises an issue under Article 1 of Protocol No. 1 (P1-1).
97. The Commission considers that a distinction must be made between
claims concerning the peaceful enjoyment of one's possessions and
claims of freedom of movement. It notes that the applicant, who was
arrested after having crossed the buffer-zone in Cyprus in the course
of a demonstration, claims the right freely to move on the island of
Cyprus, irrespective of the buffer-zone and its control, and bases this
claim on the statement that she owns property in the north of Cyprus.
98. The Commission acknowledges that limitations of the freedom of
movement - whether resulting from a person's deprivation of liberty or
from the status of a particular area - may indirectly affect other
matters, such as access to property. But this does not mean that a
deprivation of liberty, or restriction of access to a certain area,
interferes directly with the right protected by Article 1
of Protocol No. 1 (P1-1). In other words, the right to the peaceful
enjoyment of one's possessions does not include, as a corollary, the
right to freedom of movement (cf. mutatis mutandis Nos. 7671/76 etc.,
15 Foreign students v. the United Kingdom, Dec. 19.5.77, D.R. 9 p. 185
at pp. 186 f.)
99. The Commission therefore finds that the applicant's claim of free
access to the north of Cyprus, which has been examined above (at
paras. 81 ff.) under Article 5 (Art. 5) of the Convention, cannot be
based on her alleged ownership of property in the northern part of the
Island.
100. It follows that it discloses no issue under Article 1 of
Protocol No. 1 (P1-1).
Conclusion
101. The Commission concludes by eight votes to five that there has
been no violation of Article 1 of Protocol No. 1 (P1-1) to the
Convention.
E. Recapitulation
102. The Commission concludes unanimously that there has been no
violation of Article 3 (Art. 3) of the Convention (para. 65 above).
103. The Commission concludes by eleven votes to two that there has
been no violation of Article 8 (Art. 8) of the Convention, as regards
the applicant's private life (para. 72 above).
104. The Commission concludes by nine votes to four that there has
been no violation of Article 5 para. 1 (Art. 5-1) of the Convention
(para. 85 above).
105. The Commission concludes by nine votes to four that there has
been no violation of Article 8 (Art. 8) of the Convention, as regards
the applicant's home (para. 89 above).
106. The Commission concludes by eight votes to five that there has
been no violation of Article 1 of Protocol No. 1 (P1-1) to the
Convention (para. 101 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF
MM. NØRGAARD, JÖRUNDSSON, GÖZÜBÜYÜK, SOYER AND DANELIUS
In their declaration deposited on 28 January 1987, the Government
of Turkey recognised the right of individual petition under Article 25
of the Convention, subject to certain conditions. One of these
conditions was that the right of petition should extend only to
allegations concerning acts and omissions of public authorities in
Turkey performed within the boundaries of the territory to which the
Constitution of Turkey is applicable. It is clear that this wording was
intended to prevent petitions from being lodged in regard to events
occurring in the northern part of Cyprus.
The question arises whether this territorial limitation in the
Turkish declaration is legally valid. If it should be considered not
to be valid, the further question arises as to whether this will affect
the validity of the Turkish declaration as a whole.
We first note that, in accordance with a constant practice, a
Contracting State is free to make a temporal limitation of its
declaration under Article 25 of the Convention, in particular by
excluding its application to acts which occurred before the declaration
was made.
Moreover, under Article 63 of the Convention, certain territorial
limitations are also expressly provided for. However, Article 63
concerns territories for whose international relations a Contracting
State is responsible, and the northern part of Cyprus cannot be
regarded as such a territory. Nevertheless, Article 63 shows that, when
making a declaration under Article 25, a Contracting State may, in some
circumstances, make a distinction between different territories.
If a State may exclude the application of Article 25 to a
territory referred to in Article 63, there would seem to be no specific
reason why it should not be allowed to exclude the application of the
right of individual petition to a territory having even looser
constitutional ties with the State's main territory. If this was not
permitted, the result might in some circumstances be that the State
would refrain altogether from recognising the right of individual
petition, which would not serve the cause of human rights.
We consider that the territorial limitation in the Turkish
declaration, insofar as it excludes the northern part of Cyprus, cannot
be considered incompatible with the object and purpose of the
Convention and that it should therefore be regarded as having legal
effect.
In these circumstances, it is not necessary to examine what the
legal consequences would have been if the territorial limitation had
been held not to be legally valid.
It follows that in our view the Commission is not competent to
deal with the applicant's complaints of violations of the Convention
in Cyprus. For these reasons, we have voted against any finding of a
violation of the Convention in the present case.
(Or. English)
PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION
OF MR. C.L. ROZAKIS
In my partially concurring and partially dissenting opinion to
the opinion of the Commission in the cases of Metropolitan Chrysostomos
and Archimandrite Papachrysostomou against Turkey (Nos. 15299/89 and
15300/89), I referred to a number of issues on which I disagree with
the majority of the Commission. The approaches that I have expressed
there remain the same, insofar as they are pertinent to the present
case.
In the case of Titina Loizidou there is, however, one more
element on which I disagree with the majority of the Commission: that
of the access of the applicant to her property; mainly from the angle
of the first article of the First Protocol to the Convention. The
applicant complains that "Turkey through the use of its armed forces
and by the continued occupation and control of part of Cyprus and by
prohibiting the applicant on a number of occasions from gaining access
to the said part of Cyprus and consequently to the property in
question, has affected the rights of the applicant as property owner"
[peaceful enjoyment of her possessions] (para. 91 of the Commission's
Report).
The answer to the complaint of the applicant on the part of the
Commission does not satisfy, in my view, her expectation for an overall
determination of her case. The Commission contents itself with dealing
with only one aspect of her complaints: in paras. 97, 98 and 99 it
considers that what she asks is not actually a request for the
enjoyment of her possessions - which comes under the protection of the
First Protocol - but a request for moving freely in the occupied
territory of Cyprus, where her possessions lie. And since the "right
to peaceful enjoyment of one's possessions does not include, as a
corollary the right to freedom of movement ... the applicant's claim
of free access to the north of Cyprus cannot be based on her alleged
ownership of property in the northern part of the island."
I think that the Commission interprets in a very narrow way the
meaning of the word "access" to the applicant's property. Under the
influence of the previous cases (Nos. 15299 -15300) and because of the
participation of the present applicant in the March manifestations, it
considers that the notion of "access", as used by the applicant, is
solely referring to a physical contact between the applicant and her
possessions.
Yet, to my mind, the notion of "access", when referring to the
enjoyment of possessions (and when referring to the very wording of the
expressed complaint of our applicant) is a wider one than the mere
freedom of movement which may allow the establishment of a physical
contact. It actually covers all the elements constitutive of the right
to enjoyment of possessions; i. e. the possibility to repair an
immovable good; or the possibility to usefully exploit the possession;
or the possibility to exchange a possession through the free
acquisition of another one, etc. Under these circumstances, it becomes
clear that the occupation by Turkey of the northern part of Cyprus
actually prevents, in a continuing manner, the free enjoyment of
possessions, the access to their many uses, and attributes, for the
applicant.
I must also concede that even a narrow interpretation of the term
"access" could not have led me so easily to the conclusion that no
issue arises under the First Protocol to the Convention. There are
circumstances where the absence of physical contact of a person with
his or her possessions may amount to a deprivation of possessions; this
is particularly true in cases where the use of a possession is the main
constitutive element for the enjoyment of the possession; but also in
other cases where the optimal exploitation of a possession requires
physical presence of the person who owns it.
I then wonder whether, under the circumstances of the present
case, when the applicant has for a long time been unable both to have
any physical contact with her possessions and to freely make use of
them, she cannot effectively claim to be a victim of continuous
violation of her rights, under the Protocol. I conclude, in answering
my own dilemma, that in either way I see a violation of Article 1 of
the First Protocol.
(Or. English)
PARTIALLY DISSENTING OPINION OF MR. M.P. PELLONPÄÄ
While I share the opinion of the majority of the Commission in
other respects, I disagree in so far as concerns the complaints based
on Article 5 of the Convention and Article 1 of Protocol No.1.
The majority seem to consider that the applicant's right
protected by Article 1 of Protocol No. 1 has been interfered with only
"indirectly", and that therefore the case discloses no issue under
Article 1 of Protocol 1 (paras. 98, 100). This finding appears to be
based on the view that the applicant in reality complains only about
the lack of free access to her property, i.e., denial of freedom of
movement.
In agreement with what is said by Mr. Rozakis in his Dissenting
Opinion I consider this to be an unduly narrow construction of the
applicant's complaint made under Article 1 of Protocol No. 1. In her
application form the applicant submitted that:
"Turkey through the use of the T.M.F. and by the continued
occupation and or control of the said part of Cyprus and by
prohibiting the Applicant access to the said part of Cyprus
and consequently to her property in question, has gradually
and with the passing of time over the last 15 years,
affected the rights of the Applicant as property owner and
in particular her right to peaceful enjoyment of her
possessions contrary to Article 1 of protocol 1 of the
Convention (see SPORRONG ...) thus constituting a
continuing violation of the said Article."
In her observations on the merits submitted in December 1992 the
applicant specified that:
"In the particular case of violations of Article 1 of
Protocol 1 of the Convention, the object of the Application
is for the Applicant to be restored to the peaceful
enjoyment of her possessions in the area occupied by Turkey
and, in particular, her immovable property situated in
Kyrenia. In addition the Applicant seeks compensation for
the deprivation of the use and enjoyment of her property
for the period between July 20, 1974 up to this day."
To me it is clear that the applicant's complaint is not limited
to the access aspect but concerns an alleged denial of various aspects
of the right guaranteed by Article 1 of Protocol No. 1.
Since 1974 all the essential elements of the applicant's rights
as the owner of the property, including access to the property, have
been interfered with. This interference was not for the purpose of
controlling the use of the property within the meaning of the second
paragraph of Article 1 of Protocol No.1. Nor was the applicant's
property formally expropriated before the acceptance by Turkey of the
right of individual petition in such a way as to remove the
interference from the Commission's competence ratione temporis.
According to the respondent Government, "the question of Greek
properties in the north and Turkish Cypriot properties in the south is
a matter of discussion within the framework of the intercommunal talks"
(para. 30 of the Commission's report). Thus the unsettled nature of the
property issue - and the continuing nature of the interference - is
conceded by the Government.
Under these circumstances the denial of access to the property
and denial of its enjoyment amount to a continuing violation of
Article 1 of Protocol No. 1 (see, mutatis mutandis, Case of
Papamichalopoulos and Others v. Greece, Eur. Court H.R., judgment of
24 June 1993). This violation is attributable to Turkey, as there are
no circumstances which would break the chain of causation between the
original interference by Turkey and the present situation. I refer to
the considerations put forward in my Partially Concurring, Partially
Dissenting Opinion in Chrysostomos and Papachrysostomou v. Turkey
(Nos. 15299/89 and 15300/89).
I also consider that Article 5 of the Convention has been
violated. I doubt whether the arrest and detention on the basis of the
rules relied on in the main opinion of the Commission fulfilled the
requirement of foreseeability and therefore took place "in accordance
with a procedure prescribed by law". In all the circumstances of the
case, including the length of the deprivation of liberty, I conclude
that the applicant's "right to liberty and security of person",
guaranteed by para. 1 of Article 5, was violated.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
2 July 1989 Introduction of the application
31 July 1989 Registration of the application
Examination of Admissibility
7 September 1989 Commission considers state of
proceedings
7 October 1989 Commission considers state of
proceedings
9 November 1989 Commission's decisions:
- to join the present application and
Applications No. 15299/89
(Metropolitan Chrysostomos v. Turkey),
and No. 15300/89 (Archimandrite
Papachrysostomou v. Turkey);
- to invite the Government to submit
observations on the admissibility and
merits of the applications
28 February 1990 Government's observations
11 May 1990 Applicants' observations in reply
5 October 1990 Commission's decision to hold an oral
hearing
18 December 1990 Further written submissions by the
applicant
11 January 1991 Oral hearing on admissibility and
merits
11 and 12 January 1991 Commission's deliberations
4 March 1991 Commission's further deliberations and
decision to declare the application
partly admissible and partly
inadmissible
7 March 1991 Commission approves text of decision
on admissibility
7 March 1991 Decision on admissibility communicated
to the parties
Examination of the merits
7 March 1991 Commission invites Government to
submit observations on the merits
7 May 1991 Government's requests to re-open
proceedings on admissibility and to
declare the applications inadmissible
24 May 1991 Applicant's comments on the
Government's requests
30 May 1991 Commission finds no legal basis for
the requests, invites Government
again to submit observations on
merits
6 July 1991 Commission grants Government's request
for extension of time-limit
25 September 1991 Government refuse to participate in
further proceedings
8 October 1991 Commission's deliberations
16 October 1991 Commission's further deliberations and
adoption of Interim Report to the
Committee of Ministers
17 October 1991 Commission's deliberations
19 December 1991 Committee of Ministers adopts
Resolution DH (91) 41
14 January 1992 Commission's decisions:
- to take oral evidence;
- to invite parties to file
observations
28 February 1992 Government's observations
24 March 1992 Submissions by applicant
9 April 1992 Commission's decisions:
- appointment of Delegation for
hearing of witnesses;
- list of witnesses to be examined
29 April 1992 Government propose further witness
19 May 1992 Commission's deliberations
20 May 1992 Further submissions by Government
5 June 1992 Further submissions by applicant
9 and 10 June 1992 Hearing of witnesses by Delegation
7 July 1992 Commission's decision to hold oral
hearing on the merits of the
applications
28 September 1992 Further written submissions by the
applicant
1 October 1992 Further written submissions by the
Government
20 November 1992 Government submit documentary material
2 December 1992 Communication from Government
3 December 1992 Commission's deliberations
4 December 1992 Oral hearing on the merits.
Commission's deliberations
7 December 1992 Commission decides to disjoin the
present application from Applications
No. 15299/89 (Metropolitan
Chrysostomos v. Turkey), and
No. 15300/89 (Archimandrite
Papachrysostomou v. Turkey);
28 January 1993 Final submissions by applicant
29 January 1993 Government's final submissions
3 April 1993 Commission's consideration of the
state of proceedings
29 June 1993 Commission's deliberations on the
merits and final vote
8 July 1993 Adoption of the Report
Full & Egal Universal Law Academy