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Is the European Court of Human Rights Still a Principled Court of Human Rights After the Demopoulos Case?

Published online by Cambridge University Press:  06 May 2011

LOUKIS G. LOUCAIDES
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Abstract

On 10 May 2001, the European Court of Human Rights delivered its judgment in the case of Cyprus v. Turkey pronouncing on the legal consequences of Turkey's invasion and occupation of the northern part of Cyprus since 1974. The Court found Turkey responsible for continuing violations of the right to the home and property of Greek-Cypriots. Invoking the Namibia principle, the Court found that remedies in the occupied part of Cyprus may be regarded as domestic remedies of Turkey and that the question of their effectiveness was to be considered in the specific circumstances in which it arises. On 1 March 2010, the Court decided that a Commission in the occupied area was a remedy that should be exhausted by the complainants for the above violations. Significant legal questions were determined relating to the effectiveness of this remedy with far-reaching consequences concerning the right to home and property as well as other aspects of human rights and international law.

Keywords

homepropertyremedies in occupied territory
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 24 , Issue 2 , June 2011 , pp. 435 - 465
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Selmouni v. France, Application No. 25803/94, Judgment of 28 July 1999 (1999/V).

2 D. J. Harris, M. O'Boyle, and C. Warbrick, Law of the European Convention of Human Rights (2009), 764, note 49.

3 Akdivar & Others v. Turkey, Application No. 21893/93, Judgment of 16 September 1996 (1996/IV).

4 Selmouni v. France, supra note 1.

5 Harris, O'Boyle, and Warbrick, supra note 2, at 776.

6 Greece v. UK, No. 299/57, (1959) 2 YB 186, at 192; Cyprus v. Turkey, No. 8007/77, (2001) 13 DR 85 (1978), at 151–2.

7 Donnelly v. UK, 4 DR 64 (1975); Ireland v. UK, A 25 (1978).

8 Akdivar & Others v. Turkey, supra note 3.

9 Ibid., para. 69.

10 Isayeva, Yusupova and Bazayeva v. Russia, Hudoc, (2005) 41 EHRR 847.

11 2 DR, at 137–8.

12 Loizidou v. Turkey, Judgment of 18 December 1996 (Merits), Reports of Judgments and Judgments (1996-VI), at 2223, paras. 16–17.

13 Loizidou v. Turkey, supra note 12, para. 45 of the Judgment.

14 Cyprus v. Turkey, Application No. 25781/94, 10 May 2001, Report of the European Commission of Human Rights of 4 June 1999, Decisions and Reports 2.

15 Ibid.

16 Ibid.

17 Xenides-Arestis v. Turkey, Application No. 46347/99, 7 December 2006.

18 Demopoulos and Others v. Turkey, Application Nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 199/93/04, and 21819/04 decision as to admissibility dated 1 May 2000 (hereinafter ‘the Decision’), judgment as to admissibility dated 1 March 2010.

19 Ibid.

20 See inter alia Cyprus v. Turkey, supra note 14; Loizidou v. Turkey, supra note 12; Demades v. Turkey, No. 16219, 31 July 2003.

21 Para. 84 of the Decision.

22 Paras. 83–85 of the Decision.

23 Para. 83 of the Decision.

24 E.g., Cyprus v. Turkey, supra note 14, at 95.

25 In the same judgment, the Court stated in para. 114 the following: ‘While it goes without saying that Turkey is regarded by the international community as being in illegal occupation of the northern part of Cyprus, this does not mean that, when dealing with individual applications concerning interference with property, the Court must apply the Convention any differently.’

26 G. Ezejiofor, Protection of Human Rights under the Law (1964), 132; L. G. Loucaides, Essays in the Developing Law of Human Rights (1995), 227.

27 [1980] ICJ Rep. 90.

28 Loizidou v. Turkey, Application No. 15318/89, Judgment of 18 December 1996, at 64.

29 Ibid., para. 64.

30 Cyprus v. Turkey, supra note 14.

31 Report of the Commission in Application No. 25781/94, 4 June 1999, paras. 7 and 22.

32 L. M. Goodrich, The United Nations (1960), 242; Ezejiofor, supra note 26, at 13; L. Oppenheim, International Law, Vol. I (1955), 737.

33 Cyprus v. Turkey, supra note 14.

34 Para. 175 of the Decision.

35 Para. 189 of the Decision.

36 Para. 83 of the Decision.

37 Judgment of the Permanent Court of International Justice, 13 September 1928, concerning the factory at Chorzów (Collection of Judgments, Series A No. 7, at 47); see also J. Crawford, The International Law Commission's Articles on State Responsibility (2002), 216; the Pinheiro principles on the right of return and of restitution of properties of displaced persons; E/CN.4/Sub.2/2005/17.

38 Application No. 18364/91, Judgment of 27 January 2009.

39 Application No. 16/62/90, Judgment of 20 January 2009.

40 Xenides-Arestis v. Turkey, supra note 17.

41 Cyprus v. Turkey, supra note 14.

42 See L. G. Loucaides, ‘The Concept of “Continuing” Violations of Human Rights’, in P. Mahoney, F. Matscher, H. Petzold, and L. Wildhaber (eds.), Protecting Human Rights: The European Perspective, Studies in Memory of Rolf Ryssdal (2000), at 803 ff. and the authorities cited therein.

43 Para. 111 of the Decision.

44 Loizidou v. Turkey (Preliminary Objections), Application No. 15318/89, 23 March 1995, para. 62.

45 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), [1971] ICJ Rep. 56, para. 125.

46 Para. 93 of the Decision; ibid.

47 Cyprus v. Turkey, supra note 14.

48 See the article of this author, ‘The Judgment of the European Court of Human Rights in the Case of Cyprus v. Turkey’, (2002) 15 LJIL 1, at 225.

49 Para. 94 of the Decision.

50 The refusal by Turkey to allow displaced applicants to return to their homes as found by the Court in the case of Cyprus v. Turkey still continues.

51 Even the Commission of Compensation, established in the occupied part of Cyprus and the subject of the Demopoulos case, does not provide for a restoration of the right of displaced persons to return to their homes and properties.

52 Only those inhabitants who are Greek-Cypriots in the occupied part of Cyprus are not allowed to return thereto and were the victims of mass violations ever since the Turkish invasion in 1974 (see the report of the European Commission of Human Rights in Application Nos. 6780/74 and 6950/75, at 167: ‘the acts violating the Convention were exclusively directed against members of one of the two communities in Cyprus, namely the Greek-Cypriot community.’

53 See, e.g., the findings about inhuman treatment of the relatives of the Greek-Cypriot missing persons in the case of Cyprus v. Turkey, supra note 14, paras. 157–158.

54 See Amuur v. France, Application No. 19776/92, 25 June 1996, Reports of Judgments and Decisions (Reports) (1996/III) and Engel v. The Netherlands, Series A No. 22, where the Court observed that the wide interpretation supported by the government ‘would entail consequences incompatible with the notion of the Rule of Law from which the whole Convention draws its whole inspiration’.

55 Cyprus v. Turkey, supra note 14, para. 98 (emphasis added).

56 Cyprus v. Turkey, supra note 14.

57 Cyprus v. Turkey, supra note 14, para. 98.

58 Another matter that was thoroughly argued by the applicants against the proposition of exhausting the remedies proposed by Turkey was that the procedure of exhausting those remedies would have been unduly prolonged, taking into account the long time that had elapsed since the lodging of their applications before the Court and the time required to spend on the examination of their case by the proposed Commission in the occupied area plus the proceedings before the Administrative Court in the same area. Yet, the Court gave no due consideration to the matter (cf. the Judgment in the Southern African Development Community SADC (T), Case No.2/2007, where the tribunal, basing itself on the African Charter on Human and People's Rights, found that no exhaustion of legal remedies was required because ‘the procedure of achieving the remedies would have been unduly prolonged’).

59 Paras. 142–143 of the Decision (emphasis added).

60 Xenides-Arestis v. Turkey, supra note 17, para. 35.

61 See the Ireland v. the United Kingdom, Application No. 5310/71, Judgment of 18 January 1978, Series A No. 25, at 64, para. 159, and the report of the Commission in the same case, Series B No. 23-I, at 394–7, adopted also in the Demopoulos case in para. 70.

62 Para. 90 of the Decision.

63 Para. 39 of the Decision.

64 In particular, by the necessity to facilitate the objectives of the occupant country to get the approval of the Court for the ‘remedy’ established in the occupied part of Cyprus in order to avoid the pressing control of the Court, even though the relevant ‘law’ providing the ‘remedy’ was plainly contrary to Art. 159 of the ‘TRNC’ Constitution, which provided as follows:

‘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 . . . 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.’

65 Cyprus v. Turkey, supra note 14, paras. 264–265.

66 Report of the Commission in Application No. 25781/94, supra note 31, para. 265 (emphasis added).

67 Para. 90 of the Decision, section 90.

68 Cyprus v. Turkey, supra note 14, para. 171.

69 Report of the Commission, supra note 52, paras. 264–265.

70 Cyprus v. Turkey, supra note 14, paras. 171, 177, 282, 292, 293, and 296 of the judgment in the case of Cyprus v. Turkey to which the Court referred and paras. 264–265 of the relevant Report of the Commission.

71 Cyprus v. Turkey, supra note 14, paras. 171 and 293.

72 Para. 120 of the Decision.

73 Ibid.

74 Which is inherent in every Article of the Convention and from which the whole Convention draws its whole inspiration: Amuur v. France, supra note 54, and Engel v. The Netherlands, supra note 54.

75 Cyprus v. Turkey, supra note 14, at 101: partly dissenting opinion of Judge Palm joined by Judges Jungwiert, Levits, Pantiru, Kovler, and Marcus-Helmons, at 102–4.

76 ECHR (Ser. A No. 28), paras. 31 ff. See also the case of Johnston and Others v. Ireland, Application No. 9697/82, para. 1.

77 ECHR (Ser. A No. 161), para. 51.

78 ECHR, Application No. 35763/97, para. 55.

79 Application Nos. 46827/99 and 46951/99, Judgment of 4 February 2005.

80 M. Cohen-Jonathan, ‘Le rôle des principes généraux dans l'interpretation et l'application de la Convention Européenne de droits de l'homme’, in L. E. Pettiti (ed.), Mélanges en hommage à Louis Edmond Pettiti (1998), 167.

81 Ireland v.United Kingdom, Judgment of 13 May 1980, Series A No. 37, at 16, para. 33.

82 A 132 (1988); 10 EHRR 466.

83 Loizidou v. Turkey, supra note 12.

84 ECHR, Application No. 35763/97, supra note 78.

85 Application No. 31253/96, 21 November 2001.

86 Application No. 37112/97.

87 See inter alia Demir and Baykara v. Turkey, Application No. 34503/97, Judgment of 12 November 2008, where it was stated that ‘it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights’. See also case of Neulinger and Shuruk v. Switzerland, Application No. 41615/07, Judgment of 6 July 2010, where it was stated: ‘The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken of any relevant rules of international law applicable in the relations between the parties, . . . in particular the rules concerning the international protection of human rights . . .. The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see the numerous references in paragraphs 49–56 above, and in particular Article 24 § 2 of the European Union's Charter of Fundamental Rights). As indicated, for example, in the Charter, “[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his and her parents, unless that is contrary to his or her interests”.’

88 Para. 84 of the Decision.

89 ‘Occupied territories’ are subject to special rules of international law, which are set out in particular in the Hague Regulations and in the Geneva Conventions of 1949, as supplemented by the Additional Protocols 1 and 2 of 1977. These Conventions in their greater part, including that which is set out herein below, reflect both general principles of international law and rules of general customary law (see inter alia T. Meron, Human Rights and Humanitarian Norms, as Customary Law (1989), 45) and are applicable not only in cases of occupation as a consequence of war, but also in cases of occupation as a result of any military operations, which include even those that are carried out by states in accordance with the UN Charter (see inter alia J. G. Starke, An Introduction to International Law (1972), 495, at 517–18). Art. 49 of the Geneva Convention adopted on 12 August 1949 (the Convention has been signed by Turkey) provides, in para. 6: ‘Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive . . .. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. According to the First Protocol to that Convention breach of such obligation amounts to a war crime. This provision appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary.’ ‘The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory,’ is also considered a crime against humanity under the Statute of the International Criminal Court: Article 8(2)(b)(viii). Seizing the enemy's property (unless such seizure be imperatively demanded by the necessities of war) is again a war crime under the same statute. Settlers may address their claims for any violations of their rights to Turkey who has been responsible for their transfer to the occupied part of Cyprus. They cannot have any complaints against the Republic of Cyprus so long as they were never accepted or tolerated by the latter in its territory. If it were otherwise, the prohibition of settlers would have been undermined because occupant countries would have been confident that after the passage of some time, the settlements would be condoned on humanitarian or human rights grounds.

90 See inter alia M. N. Shaw, International Law (2008), 104.

91 Para. 112 of the Decision.

92 Para. 113 of the Decision.

93 Para. 115 of the Decision.

94 Ibid. (emphasis added).

95 Para. 116 of the Decision (emphasis added).

96 Cyprus v. Turkey, supra note 14; see also the reports of the ECHR in the inter-state cases of Cyprus v. Turkey in Application Nos. 6780/74, 6950/75, and 8007/77.

97 This does not appear to be disputed by the Court. In any event, in support of this principle, see the judgment of the Permanent Court of International Justice in the Chorzów Factory case, PCIJ Rep., (1928) Series A No. 17, at 47–8, where it was held that ‘the essential principle is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that had not been committed’; see also Democratic Republic of the Congo v. Belgium, Judgment of February 14 2002, [2002] ICJ Rep. 3; and P. Daillier and A. Pellet, Droit international public (1999), para. 495; see also L. G. Loucaides, ‘Reparations for Violations of Human Rights under the European Convention and Restitution in Integrum’, (2008) 2 European Human Rights Law Review 182 ff.

98 See Art. 46 of the Hague Regulations, with respect to which L. Oppenheim, International Law: Disputes, War and Neutrality, Vol. II (1952), 403, at 619, states the following: ‘Immovable private enemy property may under no circumstances or conditions be appropriated by an invading belligerent. Should he confiscate and sell private land or buildings, the buyer would acquire no right whatever to the property . . . if the occupant has appropriated and sold such private or public property as may not legitimately be appropriated by a military occupant, it may afterwards be claimed from the purchaser without payment of compensation.’

99 Document E/CN.4/Sub.2/2005/17.

100 Document E/CN.4/Sub.2/2005/17/Add.1, 11 July 2005, para. 63: ‘Secondary occupants are persons who take up residence in a home after the home's rightful occupants have fled due to, inter alia, forced displacement, forced eviction, violence or threat of violence, or natural or human-made disasters.’

101 Document E/CN.4/Sub.2/2005/17, supra note 99, para. 17.1 (emphasis added).

102 Ibid., para. 17.2 (emphasis added).

103 Doğan and Others v. Turkey, Judgment of 29 June 2004, ECHR (2004/VI).

104 The case resembles in substance those of the applicants in the Demopoulos case.

105 Doğan and Others v. Turkey, supra note 103, para. 154.

106 The relevant text of the ‘TRNC law’ on this subject is as follows: ‘8. (1) Immovable properties that are subject to a claim for restitution by the applicant, ownership or use of which has not been transferred to any natural or legal person other than the state, may be restituted by the judgment of the Commission within a reasonable time period, provided that the restitution of such property, having regard to the location, and the physical condition of the property, shall not endanger national security and public order and that such property is not allocated for public interest reasons and that the immovable property is outside the military areas or military installations’ (emphasis added).

107 Para. 117 of the Decision.

108 Ibid.

109 Section 111.

110 Section 113.

111 Para. 112 of the Decision.

112 Art. 46 of the Hague Regulations.

113 Paras. 136–137 of the Decision.

114 Cyprus v. Turkey, supra note 14.

115 Application No. 18364/91, supra note 38.

116 Para. 136 of the Decision.

117 UN Doc. Res 41/63 (d) (1986) concerning the Israeli military occupation on the Palestinian and other Arab territories. Cf. UN Doc. Res. 581 (1986), UN Security Council: condemning the racist apartheid regime in South Africa.

118 See also the cases against Turkey mentioned in the above reasoning of the judgment and the case of Asproftas v. Turkey, Application No. 16079/90, Judgment of 27 May 2010; see on the subject of the right of return L. G. Loucaides, The European Convention on Human Rights: Collected Essays (2007), 246 ff.

119 Para. 116 of the Decision.

120 Para. 127 of the Decision.

121 L. Oppenheim, International Law: A Treatise, Vol. II (1952), 218.

122 M. Cox, ‘The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina’, (1998) 47 ICLQ 628.