22/01/2025

Cyprus retains jurisdiction under article 1 ECHR over property in the UN-administered buffer zone

On 16 January 2025, the European Court of Human Rights (ECtHR) handed down judgment in Ioannides v Cyprus (App No.32879/18) which will be of interest to international law practitioners concerned with the issue of jurisdiction under article 1 of the European Convention on Human Rights (ECHR).

In summary, the ECtHR held that:

• the Republic of Cyprus retained jurisdiction over the applicant’s property, which was located in the UN-administered buffer zone;
• the domestic courts’ refusal to examine the applicant’s arguments as to the unlawful use of her property and the refusal to pay rent constituted a procedural violation of article 1 protocol no 1 (A1P1).

Alexandros Demetriades assisted the team at Lellos P. Demetriades Law Office LLC, acting for the successful applicant.

Background

The applicant is the owner of a house (the Property) located in the buffer zone, an area administered by the United Nations Peacekeeping Force in Cyprus (UNIFCYP) following an agreement concluded with the Republic of Cyprus. In September 2001, UNIFCYP started using the Property. The applicant commenced proceedings against the State in the Cypriot courts, relying on A1P1, claiming human rights breaches and rent arrears. The Nicosia District Court and the Cypriot Supreme Court each held that the State could not be held accountable for the applicant’s losses because it had no control over the buffer zone in which the Property was located.

The applicant alleged that, by consenting to the creation of the restricted zone around the Property, by letting UNFICYP occupy that Property, and by refusing to pay her for the occupation of her house, the State had prevented her from peacefully enjoying her Property.

Judgment

The ECtHR concluded that the Republic of Cyprus retained jurisdiction over the Property. It held that, where the State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation (eg when a separatist regime is set up), the State’s obligation under art 1 ECHR to secure Convention rights to everyone within its jurisdiction would be limited to a positive obligation to take measures within its power towards that end [78]. The court held that the above analysis should be adapted in the present case, to account for a situation where the State retains full control over the persons concerned, thereby giving rise to its direct responsibility [79].

As to A1P1, the ECtHR held:

• In relation to the applicant’s complaint concerning the denial of access to the Property, the State had discharged its obligations to take all the appropriate measures within its power.
• In relation to the State’s refusal to pay rent, the Court found that the State’s jurisdiction had not been restricted by a lack of effective control. The State could still set how and on what conditions UNFICYP could occupy the Property and so directly interfered with the applicant’s A1P1 rights [106]–[107].
• There was a procedural violation of the applicant’s A1P1 rights. The Cypriot courts did not consider the applicant’s arguments as to unlawful use of the Property and the State’s refusal to pay rent over a number of years. The domestic courts had failed to carry out an effective balancing exercise between the public interest at stake and the individual burden borne by the applicant ([111] and [114]).
• The court awarded €10,000 in respect of pecuniary and non-pecuniary damage and €12,000 in respect of costs and expenses.

Comment

Ioannides marks a departure from the approach previously taken in relation to the buffer zone in Stephens v Cyprus, Turkey and the United Nations. The judgment clarifies the relationship between ‘effective control’ and the scope of a respondent State’s obligations to secure Convention rights to everyone within its jurisdiction under art 1 ECHR [78]–[79].

Importantly, the ECtHR held that where a respondent State is directly responsible for a violation, the scope of its jurisdiction (and consequently its obligations) will not be restricted on the grounds that it lacked ‘effective control’ [106]–[107].