ORIL template.doc
Case ID: / Version Date:Product(s) to appear in: / Last substantive update:
Report status:
Citations: / Tetyana Tomko v. the Republic of Cyprus per the Department of Population Register and Immigration of the Ministry of Interior, Supreme Court of Cyprus, Review Jurisdiction, Case No. 709/2006 (20 June 2007)
Case name: / Party 1 / Tetyana Tomko
Party 2 / The Republic of Cyprus per the Department of Population Register and Immigration of the Ministry of Interior
Party 3
Party 3 role:
Other case name: / Name type:
Party 1
Party 2
Party 3
Party 3 role:
Date: / 20 June 2007
Jurisdiction/Court/Chamber: / Cyprus, Supreme Court
Judge(s): / Name / Role / Opinion
Demetrios
Hadjihambis
Procedural stage: / Final Decision
Previous stages:
Subsequent stages:
Related developments:
Key subjects: /
- Statehood
- Jurisdiction
- Individuals and human rights
- Territory
- Use of force and the law of armed conflict
Keywords: /
- Aliens, treatment
- Discrimination
- Human rights, right to family
- Human rights, right to liberty of movement
- Human rights, right to non-discrimination
- Jurisdiction, domestic
- Jurisdiction, territoriality principle
- Migrants, rights
- Occupation
- Sovereignty
- States, formation, continuity, extinction
- Territory, effective control (proposed new keyword)
Core issues: / Whether a State retains sovereignty over the occupied part of its territory and has the right to regulate the residence of aliens residing there.
Facts: / F1. The northern 36,4% of Cyprus remains occupied by Turkish military forces since 1974. The Republic of Cyprus does not exercise effective control over this area, but “has remained the sole legitimate Government of Cyprus” (as stated, inter alia, by the European Court of Human Rights in the 1996 judgment in the case of Loizidouv Turkey, para 44). Restrictions on movement from and to the occupied areas were eased in 2003 and since then Greek Cypriots and Turkish Cypriots can move and work throughout the island.
F2. Ms Tomko is an Ukranian national who came to Cyprus on 19 December 2004. On 2 September 2005 she lodged an application for renewal of her residence permit with the Ministry of Interior of the Republic of Cyprus in order “to stay with [her] Cypriot husband”. She attached a certificate of marriage with a Turkish Cypriot citizen of the Republic of Cyprus and a birth certificate of their two children issued by the authorities of the Republic of Cyprus. She added that her husband is working at the British Sovereign Base Area of Cyprus and that they both reside in Kerynia, in the occupied northern part of Cyprus. Her application was rejected on the grounds that “[they] live in the occupied side of Cyprus”.
F3. Ms Tomko lodged the present application for review of this decision with the Supreme Court, arguing that there is no legal basis in discriminating against her on the grounds that her husband resides in the occupied area. Counsel for the Republic argued that the Republic of Cyprus does not exercise control in the occupied part of Cyprus so as to enable them to examine whether the applicant has complied with the conditions imposed upon foreigners for renewing their residence permit.
Held: / H1. There is no legal basis for the justification put forward by the Republic. The application is allowed.
H2. The authorities of the Republic have failed to demonstrate that they have undertaken any efforts to investigate Ms Tomko’s application so as to substantiate that they would not be able to verify her eventual failure to comply with the conditions of renewal of her residence permit. [para 2]
H3. There is no legal provision justifying the refusal to renew an alien’s residence permit on the sole ground of her residence in the occupied part of the Republic. The occupation does not constrain the sovereignty of the Republic of Cyprus over its entire territory, including the occupied territory, nor the right to freedom of movement in the entire Republic.[para 3]
Commentary: / C1. This very brief judgment of the Supreme Court dealt essentially with a question of public law, ie whether the decision of the competent authorities of the Republic of Cyprus to dismiss the renewal of Ms Tomko’s residence permit was duly justified and substantiated. What makes this case of interest to international law is that Ms Tomko was residing in the Turkish occupied northern part of Cyprus in which the Republic of Cyprus does not exercise effective control. The failure of the competent authorities to mention the reasons (however obvious) why they were unable to verify Ms Tomko’s compliance with the residence permit conditions, presented the judge with an opportunity to make a statement which is of relevance to international law.
C2. Without engaging in any lengthy discussion or making any reference to international legal sources, the judge held that ‘the occupation does not constrain at all the sovereignty of the Republic over its entire territory, including the occupied territory’. Indeed, it is a long-established rule of international law that the occupying power does not acquire sovereign rights over the occupied territory. The territory remains the legal possession of the absent sovereign and the latter remains the de jure government of the country.
C3. What is less worked outin international law and perhaps more interesting in the present case is the extent to which aterritorial sovereign can regulate activities in the occupied part of her territory in which she does not exercise effective control. The judgment suggests that the territorial sovereign is not necessarily prevented by the occupation from doing so. This conclusion has to be read in light of the peculiar status of the Republic of Cyprus as a semi-occupied state, and the particular circumstances prevailing in the island since 2003 when restrictions on movement were eased and since when, in the words of the judge, ‘the occupation … does not constrain the right to freedom of movement in the entire Republic’.Cyprus being an EU member state, such circumstances are likely togenerate complex legal problems of public international law, private international law and EU law thatwill probably require more elaborate discussion than the one undertaken in the present judgment.
Further commentary:
Instruments cited:
Cases cited:
Reporter: / Aristotle Constantinides
Report date: / 20 November 2007
Commentator:
Commentary date: