ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 18.12.1996 "ЛОИЗИДУ (LOIZIDOU) ПРОТИВ ТУРЦИИ" [рус. (извлечение), англ.]

only does the judgment not resolve this problem, it boldly ventures into a highly political area, namely the Court's definition of the capacity in which Turkey is present in northern Cyprus and its "assessment" of the legal existence of the Turkish Republic of Northern Cyprus, both of which are matters that lie entirely outside its jurisdiction and are dealt with differently by other bodies. In other words, the Court has built its own database in order to be able to "rule" on a case that is likely to become the prototype for a whole series of similar cases which will in all probability be resolved by political bodies. Hitherto, each time the Strasbourg supervision institutions had to deal with a case involving application of other international treaties or agreements, they proceeded with great caution, and such applications never got past the admissibility stage. It is interesting, for example, that even in the present case the Commission, in its report of 8 July 1993, prudently stated with regard to the applicant's allegation that she had been unlawfully deprived of her possessions: "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 ... The provisions under which the applicant was arrested and detained ... served to protect this very area. This cannot be considered as arbitrary" (see paragraph 82 of the report). Likewise, in its report in the case of Chrysostomos and Papachrysostomou v. Turkey, the Commission stated: "... the Commission does not feel called upon to resolve the dispute between the parties as to the status of the area in which the applicants' arrest took place. It refers in this respect to paragraph 11 sub-paragraph (b) of the report of the Secretary-General of the United Nations ... and to paragraph 6 of the Unmanning Agreement of 1989 ..." (see paragraph 153 of the report).
2. As regards jurisdiction too, the Court's present judgment goes beyond the limits of its previous case-law on the question.
Wherever jurisdiction is not derived from the territorial ambit of a Contracting State's legal system, the fact of its existence must be expressly established, since in such cases it is not legally correct to speak of application of the Convention ratione loci. On that point I refer to my dissenting opinion in the above-mentioned Loizidou judgment and the Commission's decision of 12 March 1990 on the admissibility of application no. 16137/90, which concerned application of the Convention to Hong Kong (Decisions and Reports (DR) 65, p. 330 et seq.).
In its decision of 26 May 1975 concerning the case of Cyprus v. Turkey (nos. 6780/74 and 6950/75, DR 2, p. 136) the Commission had already taken the same view. That decision clearly shows that it is not a question of the Convention's application ratione loci, but of its application ratione personae.
That approach is clarified still further in other decisions in which the Commission has expressed the opinion that the acts of a State's officials, including diplomatic or consular agents, "bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property" (application no. 17392/90, DR 73, p. 193, and application no. 7547/76, DR 12, p. 73).
In its Drozd and Janousek v. France and Spain judgment the Court too, after noting that the Principality of Andorra was not "an area ... common to the French Republic and the Kingdom of Spain, nor ... a Franco-Spanish condominium", concluded that there was no jurisdiction ratione loci. It was only after excluding that category of jurisdiction that the Court turned to the question whether there was jurisdiction ratione pers



> 1 2 3 ... 48 49 50 51 ... 52

	Поделиться:	Tweet