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OLYMBIOU v. TURKEY - 16091/90 [2009] ECHR 1661 (27 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1661.html
Cite as:
[2009] ECHR 1661
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FOURTH
SECTION
CASE OF OLYMBIOU v. TURKEY
(Application
no. 16091/90)
JUDGMENT
(merits)
STRASBOURG
27
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Olymbiou v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Işıl Karakaş, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 16091/90) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mrs Andri Olymbiou (“the
applicant”), on 16 January 1990.
The
applicant was represented by Mr L. Clerides and by Mr C. Clerides,
two lawyers practising in Nicosia. The Turkish Government (“the
Government”) were represented by their Agent,
Mr Z.M. Necatigil.
The
applicant alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived her of her home and properties
and that she had been subjected to treatment contrary to the
Convention during a demonstration.
The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
By
a decision of 26 September 2002 the Court declared the application
partly admissible.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
The
applicant was born in 1950 and lives in Nicosia.
I. PROPERTY ISSUES
The
applicant claimed that she had had her home as well as other
immovable property in the occupied part of Nicosia (northern Cyprus).
In order to substantiate her claim to ownership, she produced
certificates of affirmation of ownership of Turkish-occupied
immovable properties issued by the Republic of Cyprus. According to
these certificates, the properties of Mrs “Androulla Savva
Olymbiou, née Kyriakos Anatolitis” could be described as
follows:
(a) Nicosia,
Ibrahim Pasha, plot no. 497, sheet/plan XXI/38.2.IV,
registration no. A533; building site with single storey house (area:
100 m²) and a small house (area: 50 m²) on the east half
plot and trees; use: residence; share: ½ (east plot);
(b) Nicosia,
Ibrahim Pasha, plot no. 373, sheet/plan XXI/38.3.III,
registration no. B433; building site; share: ½.
The
applicant stated that her name was shown as “Andri” in
her passport; however, her identity card was in the name of
“Androulla”, the name she was given when she was
baptised. “Savvas” was her husband's name.
The
applicant specified that the property described in paragraph 8 (a)
above had originally belonged to her father, Mr Kyriakos Yianni
Anatolitis. On 7 August 1980 he had transferred ownership to the
applicant by way of gift (Declaration of transfer no. D 5316/80).
The half share of the building site described in paragraph 8 (b)
above had been purchased by the applicant on 10 October 1973.
The
applicant submitted that since the 1974 Turkish intervention she had
been deprived of her property rights, as her property was located in
the area that was under the occupation and control of the Turkish
military authorities. She had made an attempt to return to her home
and property on 19 July 1989, but had not been allowed to do so
by the Turkish military authorities. They had prevented her from
having access to and from using her home and properties.
II. DEMONSTRATION OF 19 JULY 1989
On
19 July 1989, the applicant joined an anti-Turkish demonstration in
the Ayios Kassianos area in Nicosia in which the applicants in the
Chrysostomos and Papachrysostomou v. Turkey and Loizidou
v. Turkey cases (see below) also took part.
A. The applicant's
version of the events
According
to an affidavit sworn by the applicant before the Nicosia District
Court on 3 August 2000, the demonstration of 19 July 1989 was
peaceful and was held on the fifteenth anniversary of the Turkish
intervention in Cyprus, in support of the missing persons and to
protest against human rights violations.
The
applicant and other women gathered at the Ayios Kassianos school in
Nicosia, which was in the UN buffer zone. She sat on the stairs in
front of the entrance to the school and was listening to other women
singing when she noticed that there were Turkish soldiers standing in
front of the windows inside the school. The UN forces had taken up
position in front of the school and formed a ring around the
demonstrators. All of a sudden, some Turkish policemen had started
running toward the demonstrators. They hit the women they found in
front of them with batons, pushed them and dragged them by their
hands, hair and clothes. The UN forces left the premises and invited
the demonstrators to do likewise.
The
Turkish policemen pushed the applicant with their batons. She felt
electricity passing through her body and realised that the batons
were electric. She was seized by the armpits, pulled by the hair,
dragged along the ground and taken behind the school. While she was
being dragged, she was kicked about the body and beaten on the back
with a baton. Her handbag was thrown away and her hands were twisted
forcefully. She experienced a searing pain and felt as if she was
about to faint.
In
order to avoid more ill-treatment, the applicant pretended she had
fainted. A Turkish policeman came over to her, ordered her to get up
and gave her a slap in the face. She was thrown into a very small
room together with other arrested persons.
She
was then arrested and taken by bus to the so-called “Pavlides
Garage”. During her walk to the bus and the subsequent journey
she was subjected to assaults, beatings and gestures of a sexual
nature by the officers and the crowd. The policemen did nothing to
protect the arrested persons from being hit by the crowd, which was
swearing, shouting abuse and threats and throwing stones, some of
which came through the roof of the garage, tearing holes in the
asbestos lining. The conditions of detention in the garage were
filthy. When the detainees asked for water, they were given one or
two containers of water and just one glass to share. The policemen
shouted at them and threatened them. One of the women detainees
(Mrs Vrahimi – see application no. 16078/90) was seriously
beaten.
The
applicant was interrogated the next day, in the morning of 20 July
1989. The interrogation, which touched mainly on political subjects,
took place in Greek and was friendly. The applicant refused to sign a
statement which was written in Turkish. She was then taken to a court
which remanded her in custody for three days. At the court hearing,
an interpreter explained in Greek that the suspects were accused of
illegally entering the territory of the “Turkish Republic of
Northern Cyprus” (the “TRNC”) and of assaulting the
local police. The applicant and the other accused were given an
opportunity to speak. They stated that they did not recognise
internal borders in Cyprus and that it was they who had been the
victims of the assault.
The
applicant and other detainees were transferred to Ortakeuy Prison,
where they were kept in a ward. The applicant had to lie down on a
blanket in the corridor owing to the lack of beds and during the
night she and the other detainees were harassed by the guards, who
continually picked out detainees for checks and interrogation, so
that it was not possible to sleep.
On
21 July 1989 the applicant was again taken to court. She had no legal
representation and the quality of the interpretation was poor; the
applicant felt that the interpreter was not translating objectively
what was being said. Some prosecution witnesses were interrogated.
The judge asked whether the accused wanted legal representation; they
replied that they would only accept as defence counsel a lawyer
registered with the bar association of the Republic of Cyprus or a
non-Turkish person. As a result, they were not assisted by a lawyer.
On
22 July 1989 the court sentenced the applicant to three days'
imprisonment and to a fine of 50 Cyprus pounds (CYP) –
approximately 85 euros (EUR) – with five additional
days in prison in default of payment within 24 hours. The accused
passed through the back door of the court in order to avoid contact
with the crowd.
On
22 July the applicant and the other prisoners were photographed and
were given some personal hygiene items that had been sent by the Red
Cross.
On
24 July 1989 the applicant was released. Before being set
free she was examined by a UN doctor, who looked at her bruises and
also at the mark left on her scalp by the tuft of hair that had been
pulled out during her arrest. The doctor took notes. The applicant
was given back her personal effects and her handbag.
The
applicant alleged that as a consequence of the fierce twisting of her
hands by the Turkish policemen during her arrest, she had been left
with a permanent, serious and incurable injury to her left shoulder.
In particular, certain movements of her left hand caused her severe
pain in the shoulder.
In
support of her claim of ill-treatment, she produced a medical
certificate issued on 21 July 2000 by Dr Nicolaos P. Maroudias, a
specialist orthopaedic surgeon practising in the Apollonion Private
Hospital in Nicosia, which read:
“The [applicant] complains that since 1989 when
she had severe injuries to both her shoulders, her left shoulder is
painful even when she carries minimal weight. [It is] also painful
... on external rotation and abduction and on raising her arm above
her shoulder.
I first examined her on 30.10.93 when a supraspinatus
calcification was noted. She was then given anti-inflammatory
treatment and shown exercises to do.
She is still having problems on and off and she
occasionally uses analgesics.
X-rays show supraspinatus calcification.
Opinion:
As a result of the injuries sustained in 1989, she
developed the supraspinatus tendinitis, which is very resistant to
treatment. This condition is likely to trouble her from time to time.
She might need to come to surgical removal of the calcification with
a doubtful outcome and in that case her problems will persist.
Local hydrocortisone injection has been suggested to
her.”
B. The Government's version of the events
The
Government alleged that the applicant had participated in a violent
demonstration with the aim of inflaming anti-Turkish sentiment. The
demonstrators, supported by the Greek-Cypriot administration, were
demanding that the “Green Line” in Nicosia should be
dismantled. Some carried Greek flags, clubs, knives and wire-cutters.
They were acting in a provocative manner and shouting abuse. The
demonstrators were warned in Greek and English that unless they
dispersed they would be arrested in accordance with the laws of the
“TRNC”. The applicant was arrested by the Turkish-Cypriot
police after crossing the UN buffer zone and entering the area under
Turkish-Cypriot control. The Turkish-Cypriot police intervened in the
face of the manifest inability of the Greek-Cypriot authorities and
the UN Force in Cyprus to contain the incursion and its possible
consequences.
No
force was used against demonstrators who did not intrude into the
“TRNC” border area and, in the case of demonstrators who
were arrested for violating the border, no more force was used than
was reasonably necessary in the circumstances in order to arrest and
detain the persons concerned. No one was ill-treated. It was possible
that some of the demonstrators had hurt themselves in the confusion
or in attempting to scale barbed wire or other fencing. Had the
Turkish police, or anyone else, assaulted or beaten any of the
demonstrators, the UN Secretary General would no doubt have referred
to this in his report to the Security Council.
The
applicant was charged, tried, found guilty and sentenced to a short
term of imprisonment. She pleaded not guilty, but did not give
evidence and declined to use the available judicial remedies. She was
asked if she required assistance from a lawyer registered in the
“TRNC”, but refused and did not ask for legal
representation. Interpretation services were provided at the trial by
qualified interpreters. All the proceedings were translated into
Greek.
C. The UN Secretary General's report
In
his report of 7 December 1989 on the UN operations in Cyprus, the UN
Secretary General stated, inter alia:
“A serious situation, however, arose in July as a
result of a demonstration by Greek Cypriots in Nicosia. The details
are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot
demonstrators, mostly women, forced their way into the UN buffer zone
in the Ayios Kassianos area of Nicosia. The demonstrators broke
through a wire barrier maintained by UNFICYP and destroyed an UNFICYP
observation post. They then broke through the line formed by UNFICYP
soldiers and entered a former school complex where UNFICYP
reinforcements regrouped to prevent them from proceeding further. A
short while later, Turkish-Cypriot police and security forces
elements forced their way into the area and apprehended 111 persons,
101 of them women;
(b) The Ayios Kassianos school complex is situated
in the UN buffer zone. However, the Turkish forces claim it to be on
their side of the cease-fire line. Under working arrangements with
UNFICYP, the Turkish-Cypriot security forces have patrolled the
school grounds for several years within specific restrictions. This
patrolling ceased altogether as part of the unmanning agreement
implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots
gathered at the main entrance to the UN protected area in Nicosia, in
which the UN headquarters is located, to protest the continuing
detention by the Turkish-Cypriot authorities of those apprehended at
Ayios Kassianos. The demonstrators, whose number fluctuated between
200 and 2,000, blocked all UN traffic through this entrance until 30
July, when the Turkish-Cypriot authorities released the last two
detainees;
(d) The events described above created considerable
tension in the island and intensive efforts were made, both at the UN
headquarters and at Nicosia, to contain and resolve the situation. On
21 July, I expressed my concern at the events that have taken place
and stressed that it was vital that all parties keep in mind the
purpose of the UN buffer zone as well as their responsibility to
ensure that that area was not violated. I also urged the
Turkish-Cypriot authorities to release without delay all those who
had been detained. On 24 July, the President of the Security Council
announced that he had conveyed to the representatives of all the
parties, on behalf of the members of the Council, the Council's deep
concern at the tense situation created by the incidents of 19 July.
He also stressed the need strictly to respect the UN buffer zone and
appealed for the immediate release of all persons still detained. He
asked all concerned to show maximum restraint and to take urgent
steps that would bring about a relaxation of tension and contribute
to the creation of an atmosphere favourable to the negotiations.”
D. Photographs of the demonstration
The
applicant produced 21 photographs taken at different times during the
demonstration on 19 July 1989. Photographs 1 to 7 were intended to
show that, notwithstanding the deployment of the Turkish-Cypriot
police, the demonstration was peaceful. In photographs 8 to 10
members of the Turkish-Cypriot police are seen breaking up the
UNFICYP cordon. The final set of photographs show members of the
Turkish-Cypriot police using force to arrest some of the women
demonstrators.
E. Documents pertaining to the applicant's trial
The
English translation of the “TRNC” Nicosia District
Court's judgment of 22 July 1989 indicates that the applicant,
together with 24 other women, was charged with two offences: entering
“TRNC” territory without permission (contrary to
sections 2, 8 and 9 of Law no. 5/72 – see paragraph 38
below) and entering “TRNC” territory other than through
an approved port (contrary to subsections 12(1) and (5) of the Aliens
and Immigration Law – see paragraph 39 below).
The
judgment was given in the presence of the accused and of an
interpreter. The trial judge noted the following:
(i)
the accused did not accept the charges against them and stated that
they did not wish to use the services of a lawyer registered in the
“TRNC”;
(ii)
the public prosecutor called 7 witnesses, whose statements were
translated into Greek for the accused's benefit;
(iii)
the witnesses (mainly police officers on duty at the time of the
demonstration) declared that the accused had illegally entered the
“TRNC” buffer zone, shouted abuse at the Turkish-Cypriot
forces and resisted arrest by pulling and pushing; knives and other
cutting objects had been found in the bags of some of the
demonstrators who had been arrested; in particular, the witnesses
declared that the demonstrators had passed the barriers at the UN
observation post, broken down the wooden door of a church and moved
toward a water reservoir; according to a map shown at trial, the area
where the accused had entered was “TRNC” territory;
(iv)
the accused had been told that they could cross-examine witnesses in
turn and, if they so wished, choose one of their number to
cross-examine the witnesses on behalf of all the accused; however,
they had not done so; some accused had put a few questions to the
prosecution witnesses, but most of them had not made use of their
right of cross-examination;
(v)
the applicant had made the following statement: “As a refugee,
I have an inextinguishable desire to return. I want to return there
where I lived my childhood. I think that both the Greek Cypriots and
the Turkish Cypriots should have this right. I believe that no one
has the right and the authority to throw us out of our houses. As
long as I am living, I will want to return to my house. For me there
is no green line. There is a united Cyprus and the only flag I
recognise is the Cyprus flag”;
(vi) some
other accused had addressed the court, declaring that the
demonstration was peaceful, that they did not have any weapons and
that they did not recognise the “TRNC” as a valid State;
the “TRNC” District Court considered that these
statements were mainly of a political nature and could not undermine
the testimony of the prosecution witnesses;
(vii)
relying on statements by the latter, the “TRNC” District
Court came to the conclusion that the accused had crossed the borders
of the “TRNC” at an unapproved entry point and without
permission and had resisted by various means the UN and Turkish
forces which had tried to stop them;
(viii)
the prosecution had proved its case beyond reasonable doubt, so that
the accused were guilty on both counts;
(ix)
in deciding on the sentence, the “TRNC” District Court
had taken into account the seriousness of the offence, and the fact
that the accused had shown no remorse and continued to deny the
validity of the “TRNC”.
III. RELEVANT DOMESTIC LAW
A. The Cypriot Criminal Code
Section
70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assemble with intent
to commit an offence, or, being assembled with intent to carry out
some common purpose, conduct themselves in such a manner as to cause
persons in the neighbourhood to fear that the persons so assembled
will commit a breach of the peace, or will by such assembly
needlessly and without any reasonable occasion provoke other persons
to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembly was lawful
if, being assembled, they conduct themselves with a common purpose in
such a manner as aforesaid.
When an unlawful assembly has begun to execute the
purpose, whether of a public or of a private nature, for which it
assembled by a breach of the peace and to the terror of the public,
the assembly is called a riot, and the persons assembled are said to
be riotously assembled.”
According
to section 71 of the Criminal Code, any person who takes part in an
unlawful assembly is guilty of a misdemeanour and liable to
imprisonment for one year.
Section
80 of the Criminal Code provides:
“Any person who carries in public without lawful
occasion any offensive arm or weapon in such a manner as to cause
terror to any person is guilty of a misdemeanour, and is liable to
imprisonment for two years, and his arm or weapons shall be
forfeited.”
According
to Section 82 of the Criminal Code, it is an offence to carry a knife
outside the home.
B. Police officers' powers of arrest
The
relevant part of Chapter 155, section 14 of the Criminal Procedure
Law 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 ..."
C. Offence of illegal entry into “TRNC”
territory
Section
9 of Law No. 5/72 states:
"... Any person 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."
Subsections
12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony
except through an approved port.
...
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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
The
applicant complained that since 1974, Turkey had prevented her from
exercising her right to the peaceful enjoyment of her possessions.
She
invoked Article 1 of Protocol No. 1, which reads as follows:
“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.”
The
Government disputed this claim.
A. The Government's preliminary objections
The
Government raised preliminary objections of inadmissibility for
non-exhaustion of domestic remedies and lack of victim status. The
Court observes that these objections were identical to those raised
in the case of Alexandrou v. Turkey (no. 16162/90, §§
11-22, 20 January 2009), and should be dismissed for the same
reasons.
B. The merits
1. Arguments of the parties
(a) The Government
The
Government submitted that the information supplied by the applicant
was not sufficient to establish a proprietary interest. In
particular, on the certificates provided by the applicant (see
paragraph 8 above), the name of the owner was recorded as “Androulla
Savva Olymbiou, née Kyriakos Anatolitis”. Thus, there
was no evidence that the applicant, Mrs Andri Olymbiou, was the
same person as the alleged owner of the property in question.
Further, as the property had been acquired in 1980 (see paragraph 10
above), the applicant did not have any existing proprietary right in
1974; therefore, it could not be argued that she had been
“dispossessed” due to the Turkish intervention, which had
occurred six years earlier.
In
the Government's view, the aim of the demonstration of 19 July 1989
had been to make political propaganda. The applicant had not
genuinely intended to go to her alleged property, which she knew to
be inaccessible in the existing political situation. In any event,
even assuming that a question could arise under Article 1 of
Protocol No. 1, the control of the use of property by the “TRNC”
authorities had been justified in the general interest.
(b) The applicant
The
applicant stressed that she was the owner of the properties described
in paragraph 8 above. She observed that in 1974 the land and the
houses were family properties and there had been a natural
expectation that she would acquire ownership in due course.
Subsequent acts of the “TRNC” could not deprive her
family of the title to those properties. With the transfer of
ownership from her father, the applicant had acquired the proprietary
interest.
2. The third-party intervener
The
Government of Cyprus submitted that it was the duty of the respondent
Government to prove that the applicant did not own the relevant land
and buildings.
3. The Court's assessment
The
Court observes that the Government did not contest the applicant's
statement that her father had been the owner of the property
described in paragraph 8 (a) above. They stressed, however, that this
property had been acquired by the applicant more than six years after
the 1974 Turkish intervention and that the name on the certificates
issued by the Republic of Cyprus did not correspond to the
applicant's name.
The
Court notes that the applicant has produced written proof that her
father transferred to her the property at issue by way of gift on
7 August 1980 (see paragraph 10 above). Together with the other
documents submitted by the applicant (see paragraph 8 above), this
material provides prima facie evidence that, from August 1980
onwards, she had title to the property described in paragraph 8 (a)
above, which had previously belonged to her father. As held by the
Court in the Loizidou v. Turkey case ((merits),
18 December 1996, §§ 44 and 46, Reports of
Judgments and Decisions 1996-VI), the latter could not be
deemed to have lost title to his property by virtue of subsequent
acts of expropriation of the “TRNC” authorities.
The
applicant has also produced prima facie evidence that she had
title to the land described in paragraph 8 (b) above. As regards the
differences in the spelling of the applicant's name in the
certificates of affirmation of ownership and in the application form,
the Court accepts the explanations given by the applicant (see
paragraph 9 above). As the respondent Government have failed to
produce convincing evidence in rebuttal, the Court considers that the
applicant had a “possession” within the meaning of
Article 1 of Protocol No. 1 over the properties described in
paragraph 8 (a) and (b) above.
The
Court observes that in the case of Loizidou ((merits), cited
above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact
that the applicant has been refused access to the land since 1974,
she has effectively lost all control over, as well as all
possibilities to use and enjoy, her property. The continuous denial
of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference
cannot, in the exceptional circumstances of the present case to which
the applicant and the Cypriot Government have referred, be regarded
as either a deprivation of property or a control of use within the
meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first
sentence of that provision as an interference with the peaceful
enjoyment of possessions. In this respect the Court observes that
hindrance can amount to a violation of the Convention just like a
legal impediment.
64. Apart from a passing reference to the
doctrine of necessity as a justification for the acts of the 'TRNC'
and to the fact that property rights were the subject of
intercommunal talks, the Turkish Government have not sought to make
submissions justifying the above interference with the applicant's
property rights which is imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
In
the case of Cyprus v. Turkey ([GC], no. 25781/94,
ECHR 2001-IV) the Court confirmed the above conclusions (§§
187 and 189):
“187. The Court is persuaded that both
its reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation
of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus are being denied
access to and control, use and enjoyment of their property as well as
any compensation for the interference with their property rights.”
The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus v.
Turkey cases (op. cit.; see also Demades v. Turkey
(merits), no. 16219/90, § 46, 31 July 2003).
Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1 to the Convention by virtue of the fact that the applicant was
denied access to and the control, use and enjoyment of her properties
as well as any compensation for the interference with her property
rights.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicant submitted that in
1974 she had her home in Nicosia. As she had been unable to return
there, she was the victim of a violation of Article 8 of the
Convention.
This provision reads 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.”
The
Government disputed this claim.
The
Government of Cyprus submitted that the applicant had been driven
from her home by the Turkish invasion and had been consistently
refused the right to return ever since, in violation of Article 8
of the Convention. This interference could not be justified under the
second paragraph of this provision.
The
Court notes that the Government failed to produce any evidence
capable of casting doubt upon the applicant's statement that, at the
time of the Turkish invasion, she was regularly residing in Nicosia
and that the house was treated by her and her family as a home.
Accordingly,
the Court considers that in the circumstances of the present case,
the applicant's house qualified as “home” within the
meaning of Article 8 of the Convention at the time when the acts
complained of took place.
The
Court observes that the present case differs from the Loizidou
case ((merits), cited above) since, unlike Mrs Loizidou, the
applicant actually had a home in northern Cyprus.
The
Court notes that since 1974 the applicant has been unable to gain
access to and to use that home. In this connection it points out
that, in its judgment in the case of Cyprus v. Turkey (cited
above, §§ 172-175), it concluded that the complete
denial of the right of Greek Cypriot displaced persons to
respect for their homes in northern Cyprus since 1974 constituted a
continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention by reason of the complete denial of the right of
the applicant to respect for her home.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF
PROTOCOL NO. 1
The
applicant complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against her in the
enjoyment of her rights under Article 8 of the Convention and Article
1 of Protocol No. 1. She alleged that this discrimination had been
based on her national origin.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Court recalls that in the Alexandrou case (cited above, §§
38-39) it found that it was not necessary to carry out a separate
examination of the complaint under Article 14 of the Convention. The
Court does not see any reason to depart from that approach in the
present case (see also, mutatis mutandis, Eugenia
Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90,
§§ 37-38, 31 July 2003).
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained about the treatment administered to her during
both the demonstration of 19 July 1989 and the proceedings against
her in the “TRNC”.
She
invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government disputed her claim.
A. Arguments of the parties
1. The Government
Relying
on their version of the events (see paragraphs 18-20 above), the
Government submitted that this part of the application should be
determined on the basis of the Commission's findings in the case of
Chrysostomos and Papachrysostomou v. Turkey (applications
nos. 15299/89 and 15300/89, Commission's report of 8 June 1993,
Decisions and Reports (DR) 86, p. 4), as the factual and legal bases
of the present application were the same as in that pilot case. They
argued that the third-party intervener should be considered estopped
from challenging the Commission's findings.
2. The applicant
The
applicant essentially adopted the observations submitted by the
Government of Cyprus (see below).
B. The third-party intervener's arguments
The
Government of Cyprus submitted that the findings of the Commission in
the case of Chrysostomos and Papachrysostomou (cited
above) were not applicable to the present case. Whether the treatment
suffered by the applicant violated Article 3 had to be examined
and determined in light of the facts of the case and on the basis of
the evidence provided.
The
treatment endured by the applicant during her arrest and subsequent
imprisonment and trial had been of a very severe nature, including
inter alia physical violence and punishment, exposure to
violent and abusive crowds, inhuman and degrading conditions of
detention (including solitary confinement and sleep deprivation) and
humiliating and frightening treatment in court. Whether such
treatment was viewed cumulatively or separately, it had caused severe
physical and psychological suffering amounting to inhuman and
degrading treatment within the meaning of Article 3 of the
Convention.
C. The Court's assessment
The
general principles concerning the prohibition of torture and of
inhuman or degrading treatment are set out in Protopapa v. Turkey,
no. 16084/90, §§ 39-45, 24 February 2009.
As
to the application of these principles to the present case, the Court
observes that it is undisputed that the applicant was arrested during
a demonstration which gave rise to an extremely tense situation. It
will be recalled that in the case of Chrysostomos and
Papachrysostomou, the Commission found that a number of
demonstrators had resisted arrest, that the police forces had broken
their resistance and that in that context there was a high risk that
the demonstrators would be treated roughly, and even suffer injuries,
in the course of the arrest operation (see the Commission's report,
cited above, §§ 113-15). The Court does not see any reason
to depart from these findings and will take due account of the state
of heightened tension at the time of the applicant's arrest.
It
further observes that the applicant submitted that in the course of
her arrest she was pushed, pulled, beaten all over her body (in
particular on her back) with an electric baton, dragged along the
ground and kicked. She moreover alleged that her hands had been
twisted forcefully (see paragraph 15 above), a fact which has
allegedly provoked a permanent, serious and incurable injury to her
left shoulder (see paragraph 24 above). However, the Court has at its
disposal little evidence to corroborate the applicant's version of
events. The sole medical certificate produced by the applicant was
issued on 21 July 2000 (see paragraph 25 above), which is eleven
years after the date of the alleged ill-treatment. Even if the
orthopaedic surgeon consulted by the applicant stated that he had
first examined Mrs Olymbiou on 30 October 1993 (more than four years
after the demonstration and arrest), the Court considers that such a
delayed medical examination could not determine whether the injuries
and pain alleged by the applicant had been provoked in the ambit of
the events of 19 July 1989.
Under
these circumstances, it has not been established that the applicant's
injury was deliberately caused by the Turkish or Turkish-Cypriot
police. In any event, it cannot be ruled out that the applicant's
condition is consistent with a minor physical confrontation between
her and the police officers. There is nothing to show that the police
used excessive force when, as they allege, they were confronted in
the course of their duties with resistance to arrest by the
demonstrators, including the applicant (see, mutatis mutandis,
Protopapa, cited above, §§ 47-48).
The
applicant's remaining allegations, concerning the conditions of her
detention at the “Pavlides garage” and at Ortakeuy
Prison, are unsubstantiated. Nor has it been proved that the
applicant's injuries required immediate medical assistance. The Court
considers, moreover, that the degree of intimidation which the
applicant might have felt while being deprived of her liberty did not
attain the minimum level of severity required to come within the
scope of Article 3 (see Protopapa, cited above, § 49).
Under
these circumstances, the Court cannot consider it established beyond
reasonable doubt that the applicant was subjected to treatment
contrary to Article 3 or that the authorities had recourse to
physical force which had not been rendered strictly necessary by the
applicant's own behaviour (see, mutatis mutandis, Foka v.
Turkey, no. 28940/95, § 62, 24 June 2008).
It
follows that there has been no violation of Article 3 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant alleged that her deprivation of liberty had been contrary
to Article 5 of the Convention which, in so far as relevant, reads 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:
(a) the lawful detention of a person after
conviction by a competent court;
...
(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;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
...”
The
Government disputed this claim.
A. Arguments of the parties
1. The Government
The
Government submitted that the applicant had been arrested in
accordance with the law of the “TRNC”, which protected
the status and integrity of the UN buffer zone. The importance of
preserving the buffer zone had been repeatedly pointed out by the UN
Secretary General.
Given
its violent character, the demonstration constituted an unlawful
assembly. The Government referred, on this point, to sections 70, 71,
80 and 82 of the Cypriot Criminal Code, which was applicable in the
“TRNC” (see paragraphs 33-36 above) and noted that under
Chapter 155 of the Criminal Procedure Law (see paragraph 37 above),
the police had power to arrest persons involved in violent
demonstrations.
2. The applicant
The
applicant essentially adopted the observations submitted by the
Government of Cyprus (see below).
B. The third-party intervener's arguments
The
Government of Cyprus observed that during the applicant's initial
arrest, subsequent detention and prison sentence following the court
conviction, the applicant was denied her liberty in circumstances
which did not follow a procedure prescribed by law and which were not
lawful under Article 5 § 1 (a) and (c) of the
Convention. Moreover, the authorities' failure to inform the
applicant of all the reasons for her arrest constituted a violation
of Article 5 § 2.
C. The Court's assessment
It
is not disputed that the applicant, who was arrested and remanded in
custody by the “TRNC” Nicosia District Court, was
deprived of her liberty within the meaning of Article 5 § 1 of
the Convention.
As
to the question of compliance with the requirements of Article 5 §
1, the Court reiterates that this provision requires in the first
place that the detention be “lawful”, which includes the
condition of compliance with a procedure prescribed by law. The
Convention here essentially refers back to national law and states
the obligation to conform to the substantive and procedural rules
thereof, but it requires in addition that any deprivation of liberty
should be consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness (see Benham v. the United Kingdom,
10 June 1996, §§ 40 and 42, Reports 1996-III).
The
Court further notes that in the case of Foka v. Turkey (cited
above, §§ 82-84) it held that the “TRNC”
was exercising de facto authority over northern Cyprus and
that the responsibility of Turkey for the acts of the “TRNC”
was inconsistent with the applicant's view that the measures adopted
by it should always be regarded as lacking a “lawful”
basis in terms of the Convention. The Court therefore concluded that
when, as in the Foka case, an act of the “TRNC”
authorities was in compliance with laws in force within the territory
of northern Cyprus, it should in principle be regarded as having a
legal basis in domestic law for the purposes of the Convention. It
does not see any reason to depart, in the instant case, from that
finding, which is not in any way inconsistent with the view adopted
by the international community regarding the establishment of the
“TRNC” or the fact that the Government of the Republic of
Cyprus remains the sole legitimate government of Cyprus (see Cyprus
v. Turkey [GC], no. 25781/94, §§ 14, 61 and 90,
ECHR 2001–IV).
In
the present case, it is not disputed that the applicant took part in
a demonstration which the authorities of the “TRNC”
regarded as potentially being an “unlawful assembly”
within the meaning of section 70 of the Cyprus Criminal Code
(see paragraph 33 above). Taking part in an unlawful assembly is an
offence under section 71 of the Cypriot Criminal Code and is
punishable by up to one year's imprisonment (see paragraph 34 above).
It is also an offence under the “TRNC” laws to enter
“TRNC” territory without permission and/or other than
through an approved port (see paragraphs 38-39 above). The Court
further notes that according to Chapter 155, section 14 of the
Criminal Procedure Law, a 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 (see paragraph 37 above – see also Protopapa,
cited above, § 61, and Chrysostomos and Papachrysostomou,
Commission's report, cited above, § 147).
As
the police officers who effected the arrest had grounds for believing
that the applicant was committing offences punishable by
imprisonment, the Court is of the opinion that she was deprived of
her liberty in accordance with a procedure prescribed by law “for
the purpose of bringing [her] before the competent legal authority on
reasonable suspicion of having committed an offence”, within
the meaning of Article 5 § 1 (c) of the Convention (see
Protopapa, cited above, § 62).
Moreover,
there is no evidence that the deprivation of liberty served any other
illegitimate aim or was arbitrary. Indeed, on 20 July 1989, the day
after her arrest, the applicant was brought before the “TRNC”
Nicosia District Court and remanded for trial in relation to the
offence of illegal entry into “TRNC” territory (see
paragraph 18 above).
After
22 July 1989, the date on which the “TRNC” Nicosia
District Court delivered its judgment (see paragraph 21 above), the
applicant's deprivation of liberty should be regarded as the “lawful
detention of a person after conviction by a competent court”,
within the meaning of Article 5 § 1 (a) of the Convention.
Finally,
it is to be observed that the applicant was interrogated by an
official who spoke Greek the day after her arrest (see
paragraph 18 above). In the Court's view, it should have been
apparent to the applicant that she was being questioned about the
trespassing of the UN buffer zone and her allegedly illegal entry
into the territory of the “TRNC” (see, mutatis
mutandis, Murray and Others v. the United Kingdom, Series
A no. 300-A, § 77, 28 October 1994). Moreover, on the same
day, during the court hearing, an interpreter explained in Greek that
the suspects were accused of having illegally entered the territory
of the “TRNC” and of having assaulted the local police
(see paragraph 18 above). The Court therefore finds that the reasons
for her arrest were sufficiently brought to her attention during her
interview and during the court's hearing of 20 July 1989 (see,
mutatis mutandis, Protopapa, cited above, § 65).
Accordingly,
there has been no violation of Article 5 §§ 1 and 2 of the
Convention.
VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained of a lack of fairness at her trial by the “TRNC”
Nicosia District Court.
She
invoked Article 6 of the Convention, which, in so far as relevant,
reads as follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by an independent and impartial tribunal
established by law. ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
The
Government disputed this claim.
A. Arguments of the parties
1. The Government
The
Government stated that:
(i)
the applicant had been tried by an impartial and independent court;
(ii)
all the cases before the court, including the applicant's, were
divided into groups so as to ensure a speedy trial and help the
accused in their defence;
(iii)
the applicant had not asked for more time to prepare her defence, and
had declined legal representation;
(iv)
the court had advised the applicant and helped her to understand her
rights and the procedure;
(v)
everything at the trial had been interpreted during the proceedings
by qualified translators and interpreters in order to ensure that the
defence was not prejudiced and the accused were fully informed of the
charges against them; the trial judge replaced a translator when the
latter started to have a conversation with the accused;
(vi)
the judge, an English educated lawyer, was only involved in the
judicial proceedings and not in the decision to prosecute or in the
acts relating to the applicant's arrest;
(vii)
in passing sentence the court had taken all the circumstances of the
case into consideration; in particular, being fair and understanding
of the mental state of the accused, the judge had not punished them
for contempt of court when they behaved in a disrespectful manner and
one of them said that the trial was a “circus”.
The
Government challenged the third-party intervener's arguments as being
of a political nature. They considered that the allegations of a lack
of fairness, independence and impartiality of the judiciary in the
“TRNC” were without any foundation whatsoever. On the
contrary, previous cases decided by the “TRNC” courts
showed that they respected human rights and the Convention
principles.
2. The applicant
The
applicant essentially adopted the observations submitted by the
Government of Cyprus (see below).
B. The third-party intervener's arguments
The
Government of Cyprus submitted that the instant application was an
exceptional case in which the applicant had been denied each and all
of the basic fair-trial guarantees provided for in Article 6 of the
Convention. The violations of her rights included inter alia a
failure to inform the applicant promptly, in a language that she
understood, of the nature and cause of the accusation against her, to
provide her with adequate time and facilities to find a lawyer of her
own choosing and to prepare her defence, to allow the
cross-examination of witnesses and to provide the applicant with
proper interpretation and a transcript of the trial. Lastly, there
was proof beyond reasonable doubt that the “court” which
tried the applicant was neither impartial nor fair.
C. The Court's assessment
The
relevant general principles enshrined in Article 6 of the Convention
are exposed in Protopapa, cited above, §§ 77-82.
As
to the application of these principles to the present case, the Court
observes that the applicant was remanded for trial before the “TRNC”
Nicosia District Court. An interpreter was present at the hearings on
20 and 21 July 1989. Even if the Court has no information on which to
assess the quality of the interpretation provided, it observes that
it is apparent from the applicant's own version of the events and
from the statement she made at the court hearing (see paragraph 32
(v) above) that she understood the charges against her and the
statements made by the witnesses at the trial. In any event, it does
not appear that she challenged the quality of the interpretation
before the trial judge, requested the replacement of the interpreter
or asked for clarification concerning the nature and cause of the
accusation.
The
Court furthermore notes that the accused were offered the opportunity
of using the services of a member of the local Bar Association, of
calling defence witnesses and of cross-examining the prosecution
witnesses in turn, appointing, if they so wished, one of their number
to act on behalf of the others. However, they chose not to avail
themselves of any of these rights.
The
Court considers that the applicant was undoubtedly capable of
realising the consequences of her decision not to make use of any of
the procedural rights which were offered to her. Furthermore, it does
not appear that the dispute raised any questions of public interest
preventing the aforementioned procedural guarantees from being waived
(see, mutatis mutandis, Hermi v. Italy [GC],
no. 18114/02, § 79, 10 October 2006, and
Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November
2000).
The
Court also emphasises that the accused did not request an adjournment
of the trial or a translation of the written documents pertaining to
the procedure in order to acquaint themselves with the case-file and
to prepare their defence. There is nothing to suggest that such
requests would have been rejected. The same applies to the
possibility, which was not taken up by the accused, of lodging an
appeal or an appeal on points of law against the “TRNC”
Nicosia District Court's judgment.
Finally,
the Court cannot accept, as such, the allegation that the “TRNC”
courts as a whole were not impartial and/or independent or that the
applicant's trial and conviction were influenced by political aims
(see, mutatis mutandis, Cyprus v. Turkey, cited above,
§§ 231-240).
In
the light of the above, and taking account in particular of the
conduct of the accused, the Court considers that the criminal
proceedings against the applicant, considered as a whole, were not
unfair or otherwise contrary to the provisions of the Convention.
It
follows that there has been no violation of Article 6 of the
Convention.
VII. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
The
applicant submitted that she had been convicted in respect of acts
which did not constitute a criminal offence.
She
invoked Article 7 of the Convention, which reads as follows:
“1. No one shall be held
guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the
time the criminal offence was committed.
2. This Article shall not prejudice the
trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
The
Government disputed this claim. They alleged that the applicant had
been charged with violating the borders of the “TRNC” and
her conviction was based on the evidence of eye-witnesses. She should
have known that by violating the UN buffer zone and the cease-fire
line she would provoke a response by the UN or Turkish-Cypriot
forces.
The
Government of Cyprus submitted that the applicant had been wrongly
tried for acts which did not amount to offences under national or
international law, and which in any event failed to meet the
standards of foreseeability and accessibility required by the
Convention (see G. v. France, 27 September 1995,
Series A no. 325-B), in violation of Article 7 of the
Convention.
The
relevant general principles enshrined in Article 7 of the Convention
are exposed in Protopapa, cited above, §§ 93-95.
As
to the application of these principles to the present case, the Court
notes that the applicant was convicted for having entered the
territory of the “TRNC” without permission and other than
through an approved port. These offences are defined in Law no. 5/72
and subsections 12(1) and (5) of the Aliens and Immigration Law (see
paragraphs 38-39 above).
It
is not disputed that these texts were in force when the offences were
committed and were accessible to the applicant. The Court furthermore
finds that they described with sufficient clarity the acts which
would have made her criminally liable, thus satisfying the
requirement of foreseeability. There is nothing to suggest that they
were interpreted extensively or by way of analogy; the penalty
imposed (three days' imprisonment and a fine of CYP 50 – see
paragraph 21 above) was within the maximum provided for by the law in
force at the time the offence was committed.
It
follows that there has been no violation of Article 7 of the
Convention.
VIII. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicant complained of a violation of her right to freedom of
peaceful assembly.
She
invoked Article 11 of the Convention, which reads as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, 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. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the
administration of the State.”
The
Government disputed this claim, observing that given its violent
character, the demonstration was clearly outside the scope of
Article 11 of the Convention. They considered that the “TRNC”
police had intervened in the interests of national security and/or
public safety and for the prevention of disorder and crime.
The
Government of Cyprus submitted that the applicant's right to
demonstrate under Article 11 of the Convention had been
interfered with in an aggravated and serious manner. The acts of the
respondent Government were a deliberate and provocative attempt to
disrupt a lawful demonstration in an area which was subject to UN
patrols and not even within the claimed jurisdiction of the “TRNC”.
The interference with the applicant's rights was not prescribed by
law and was an excessive and disproportionate response to a peaceful
and lawful demonstration. The respondent Government had not
identified any legitimate aim that they were seeking to serve by
assaulting the applicant.
The
Court notes that the applicant and other women clashed with
Turkish-Cypriot police while demonstrating in or in the vicinity of
the Ayios Kassianos school in Nicosia. The demonstration was
dispersed and some of the demonstrators, including the applicant,
were arrested. Under these circumstances, the Court considers that
there has been an interference with the applicant's right of assembly
(see Protopapa, cited above, § 104).
This
interference had a legal basis, namely sections 70 and 71 of the
Cypriot Criminal Code (see paragraphs 33-34 above) and section 14 of
the Criminal Procedure Law (see paragraph 37 above), and was thus
“prescribed by law” within the meaning of Article 11 §
2 of the Convention. In this respect, the Court recalls its finding
that when, as in the Foka case, an act of the “TRNC”
authorities was in compliance with laws in force within the territory
of northern Cyprus, it should in principle be regarded as having a
legal basis in domestic law for the purposes of the Convention (see
paragraph 86 above). There remain the questions whether the
interference pursued a legitimate aim and was necessary in a
democratic society.
The
Government submitted that the interference pursued legitimate aims,
including the protection of national security and/or public safety
and the prevention of disorder and crime.
The
Court notes that in the case of Chrysostomos and Papachrysostomou,
the Commission found that the demonstration on 19 July 1989 was
violent, that it had broken through the UN defence lines and
constituted a serious threat to peace and public order on the
demarcation line in Cyprus (see Commission's report, cited above, §§
109-10). The Court sees no reason to depart from these findings,
which were based on the UN Secretary General's report, on a video
film and on photographs submitted by the respondent Government before
the Commission. It emphasises that in his report, the UN Secretary
General stated that the demonstrators had “forced their way
into the UN buffer zone in the Ayios Kassianos area of Nicosia”,
that they had broken “through a wire barrier maintained by
UNFICYP and destroyed an UNFICYP observation post” before
breaking “through the line formed by UNFICYP soldiers”
and entering “a former school complex” (see paragraph 29
above).
The
Court refers, firstly, to the fundamental principles underlying its
judgments relating to Article 11 (see Djavit An v. Turkey,
no. 20652/92, §§ 56 57, ECHR 2003 III;
Piermont v. France, 27 April 1995, §§
76 77, Series A no. 314; and Plattform “Ärzte für
das Leben” v. Austria, 21 June 1988, § 32,
Series A no. 139). It is clear from this case-law that the
authorities have a duty to take appropriate measures with regard to
demonstrations in order to ensure their peaceful conduct and the
safety of all citizens (see Oya Ataman v. Turkey,
no. 74552/01, § 35, 5 December 2006). However, they cannot
guarantee this absolutely and they have a wide discretion in the
choice of the means to be used (see Plattform “Ärzte
für das Leben”, cited above, § 34).
While an unlawful situation does not, in itself,
justify an infringement of freedom of assembly (see Cisse v.
France, no. 51346/99, § 50, ECHR 2002 III
(extracts)), interferences with the right guaranteed by Article 11 of
the Convention are in principle justified for the prevention of
disorder or crime and for the protection of the rights and freedoms
of others where, as in the instant case, demonstrators engage in acts
of violence (see, a contrario, Bukta and Others v. Hungary,
no. 25691/04, § 37, 17 July 2007, and Oya Ataman, cited
above, §§ 41 42).
The
Court further observes that, as stated in the UN Secretary General's
report of 7 December 1989 (see paragraph 29 above), the demonstrators
had forced their way into the UN buffer zone. According to the
“TRNC” authorities, they also entered into “TRNC”
territory, thus committing offences punished by the “TRNC”
laws (see paragraphs 38-39 and 87 above). In this respect, the Court
notes that it does not have at its disposal any element capable of
casting doubt upon the statements given by some witnesses at trial
according to which the area
where the accused had entered was “TRNC” territory (see
paragraph 32 (iii) above). In the Court's view, the
intervention of the Turkish and/or Turkish-Cypriot forces was not due
to the political nature of the demonstration but was provoked by its
violent character and by the violation of the “TRNC”
borders by some of the demonstrators (see Protopapa, cited
above, § 110).
In
these conditions and having regard to the wide margin of appreciation
left to the States in this sphere (see Plattform “Ärzte
für das Leben”, cited above, § 34), the
Court holds that the interference with the applicant's right to
freedom of assembly was not, in the light of all the circumstances of
the case, disproportionate for the purposes of Article 11 § 2.
Consequently,
there has been no violation of Article 11 of the Convention.
IX. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant alleged that she had not had at her disposal a domestic
effective remedy to redress the violations of her fundamental rights.
She
invoked Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government disputed this claim. In their observations of
10 January 2003, they noted that the applicant, who had failed
to use the domestic remedies available within the legal system of the
“TRNC”, could not complain of a violation of Article 13
of the Convention.
The
Government of Cyprus submitted that, contrary to Article 13 of
the Convention, no effective remedies had at any time been available
to the applicant in respect of any of her complaints. Alternatively,
the institutions established by the “TRNC” were incapable
of constituting effective domestic remedies within the national legal
system of Turkey.
Article
13 of the Convention guarantees the availability at the national
level of a remedy to enforce the substance of the Convention rights
and freedoms in whatever form they may happen to be secured in the
domestic legal order. The effect of Article 13 is thus to require the
provision of a domestic remedy to deal with the substance of an
“arguable complaint” under the Convention and to grant
appropriate relief (see, among many other authorities, Kudła
v. Poland [GC], no. 30210/96, §
157, ECHR 2000-XI).
The
scope of the Contracting States' obligations under Article 13 varies
depending on the nature of the applicant's complaint; however, the
remedy required by Article 13 must be “effective” in
practice as well as in law (see, for example, İlhan v. Turkey
[GC], no. 22277/93, § 97, ECHR 2000-VII). The term
“effective” is also considered to mean that the remedy
must be adequate and accessible (see Vidas v. Croatia,
no. 40383/04, § 34, 3 July 2008, and Paulino
Tomás v. Portugal (dec.), no. 58698/00, ECHR
2003-VIII).
It
is also to be recalled that in its judgment in the case of Cyprus
v. Turkey (cited above, §§ 14, 16, 90 and 102) the
Court held that for the purposes of Article 35 § 1, with which
Article 13 has a close affinity (see Kudla, cited above, §
152), remedies available in the “TRNC” may be regarded as
“domestic remedies” of the respondent State and that the
question of their effectiveness is to be considered in the specific
circumstances where it arises.
In
the present case, it does not appear that the applicant attempted to
make use of the remedies which might have been available to her in
the “TRNC” with regard to the circumstances of her
arrest, her subsequent detention and her trial (see Protopapa,
cited above, § 121, mutatis mutandis, Chrysostomos and
Papachrysostomou, Commission's report cited above, § 174).
In particular, she refused the services of a lawyer practising in the
“TRNC”, made little or no use of the procedural
safeguards provided by the “TRNC” Nicosia District Court,
did not lodge an appeal against her conviction and did not file with
the local authorities a formal complaint about the ill-treatment she
allegedly suffered at the hands of the Turkish-Cypriot police. In the
Court's view, there is no evidence that, had the applicant made use
of all or part of them, these domestic remedies would have been
ineffective.
Under
these circumstances, no breach of Article 13 of the Convention can be
found.
X. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ
IN CONJUNCTION WITH ARTICLES 5, 6 AND 7
The
applicant alleged that she had been discriminated against on the
grounds of her ethnic origin and religious beliefs
in the enjoyment of the rights guaranteed by Articles 5, 6 and 7 of
the Convention.
She
invoked Article 14 of the Convention, which reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government disputed this claim.
The
Government of Cyprus submitted that the applicant had been arrested,
beaten and prosecuted by the authorities solely because of her
nationality and ethnic origin. That differential treatment was a
clear violation of Article 14 of the Convention.
The
Court's case-law establishes that discrimination means treating
differently, without an objective and reasonable justification,
persons in relevantly similar situations (see Willis v. the United
Kingdom, no. 36042/97, § 48, ECHR 2002 IV).
However, not every difference in treatment will amount to a violation
of Article 14. It must be established that other persons in an
analogous or relevantly similar situation enjoy preferential
treatment and that this distinction is discriminatory (see Unal
Tekeli v. Turkey, no. 29865/96, § 49, 16 November
2004).
In
the present case the applicant failed to prove that she had been
treated differently from other persons – namely, from Cypriots
of Turkish origin – who were in a comparable situation. The
Court also refers to its conclusion that the applicant's fundamental
rights under Articles 3, 5, 6, 7, 11 and 13 of the Convention have
not been infringed (see Protopapa, cited above, § 127,
and, mutatis mutandis, Manitaras v. Turkey (dec.),
no. 54591/00, 3 June 2008).
It
follows that there has been no violation of Article 14 of the
Convention read in conjunction with Articles 5, 6 and 7 of the
Convention.
XI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
In
her just satisfaction claims of December 2002, the applicant
requested CYP 54,424 (approximately EUR 92,988) for pecuniary damage.
She relied on an expert's report provided by the Department of Lands
and Surveys of the Republic of Cyprus assessing the value of her
losses which included the loss of annual rent collected or expected
to be collected from renting out her properties, plus interest from
the date on which such rents were due until the day of payment. The
rent claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until 2000. The applicant did not claim compensation for any
purported expropriation since she was still the legal owner of the
properties. The valuation contained a description of the Ibrahim
Pasha area of Nicosia, in which the applicant's properties were
situated.
The
starting point of the valuation was the annual rental value of the
applicant's share in the properties in 1974 (CYP 442 –
approximately EUR 755), calculated on the basis of a percentage (5%)
of their market value (CYP 8,831 – approximately EUR 15,088).
This sum was subsequently adjusted upwards according to an average
annual rental increase of 12%. Compound interest for delayed
payment was applied at a rate of 8% per annum.
In
a letter of 28 January 2008 the applicant observed that a long period
had passed since her first claims for just satisfaction and that the
claim for pecuniary loss needed to be updated according to data
concerning the increase of market value of the land in Cyprus. The
average increase in this respect was 10% to 15% per annum.
In
her just satisfaction claims of December 2002, the applicant also
claimed CYP 80,000 (approximately 136,688 EUR) in respect of
non-pecuniary damage for the violations of her rights under Articles
8 of the Convention and 1 of Protocol No. 1. She further claimed CYP
60,000 (approximately EUR 102,516) in respect of the moral
damage suffered for the other violations.
(b) The Government
In
reply to the applicant's just satisfaction claims of December 2002,
the Government submitted that the issue of reciprocal compensation
for Greek-Cypriot property left in the north of the island and
Turkish-Cypriot property left in the south was very complex and
should be settled through negotiations between the two sides under
the auspices of the UN, rather than by adjudication by the European
Court of Human Rights, acting as a first-instance tribunal and
relying on the reports produced by the applicant side only. They
referred, on this point, to the UN plan entitled “Basis for
agreement on a comprehensive settlement of the Cyprus problem”,
in its revised version of 10 December 2002.
Challenging
the conclusions reached by the Court in the Loizidou case
((just satisfaction), 28 July 1998, Reports 1998-IV),
the Government considered that in cases such as the present one, no
award should be made by the Court under Article 41 of the Convention.
They underlined that the applicant's inability to have access to her
properties depended on the political situation in Cyprus and, in
particular, on the existence of the UN recognized cease-fire lines.
If Greek-Cypriots were allowed to go to the north and claim their
properties, chaos would explode on the island; furthermore, any award
made by the Court would undermine the negotiations between the two
parties.
Moreover,
Turkey had no access to the lands office records of the “TRNC”,
which were outside its jurisdiction and control. It was therefore not
in a position to have sufficient knowledge about the possession
and/or ownership of the alleged properties in 1974 or to know their
market values and reasonable rents at the relevant time. The
estimations put forward by the applicant were speculative and
hypothetical, as they were not based on real data and did not take
into consideration the volatility of the property market and its
susceptibility to be influenced by the domestic situation in Cyprus.
During the last 28 years, the landscape in Cyprus had considerably
changed and so had the status of the applicant's property.
It
was also to be noted that in the present application the estimations
had not been provided by an independent expert, but by the Department
of Lands and Surveys of the Republic of Cyprus, that is to say by a
branch of an interested party which had intervened in the proceedings
before the Court. In any event, Turkey could not be held liable in
international law for the acts of the “TRNC”
expropriating the applicant's properties, as it could not legislate
to make reparation for these acts. The Government invited the Court
to examine whether, as stated in Article 41 of the Convention, “the
internal law of the High Contracting Party concerned” allowed
“reparation to be made”.
Finally,
the Government did not comment on the applicant's submissions under
the head of non-pecuniary damage.
3. The Court's assessment
The
Court first notes that the Government's submission that doubts might
rise as to the applicant's title of ownership over the properties at
issue (see paragraph 98 above) is, in substance, an objection of
incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. Such an objection should have been
raised before the application was declared admissible or, at the
latest, in the context of the parties' observations on the merits. In
any event, the Court cannot but confirm its finding that the
applicant had a “possession” over the properties claimed
in the present application within the meaning of Article 1 of
Protocol No. 1 (see paragraph 49 above).
In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicant of the 1974 market value of her properties is
reasonable. The question must accordingly be reserved and the
subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
In
her just satisfaction claims of December 2002, the applicant sought
CYP 7,200 (approximately EUR 12,302) for the costs and expenses
incurred before the Court.
The
Government did not comment on this point.
In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant.
FOR THESE REASONS, THE COURT
Dismisses by six votes to one the Government's
preliminary objections;
Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 14 of the
Convention read in conjunction with Article 8 of the Convention and
Article 1 of Protocol No. 1;
Holds unanimously that there has been no
violation of Article 3 of the Convention;
Holds unanimously that there has been no
violation of Article 5 of the Convention;
Holds unanimously that there has been no
violation of Article 6 of the Convention;
Holds unanimously that there has been no
violation of Article 7 of the Convention;
Holds unanimously that there has been no
violation of Article 11 of the Convention;
Holds unanimously that there has been no
violation of Article 13 of the Convention;
Holds unanimously that there has been no
violation of Article 14 of the Convention read in conjunction with
Articles 5, 6 and 7 of the Convention;
Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Judges
Bratza and Karakaş are annexed to this judgment.
N.B.
F.A.
CONCURRING OPINION OF JUDGE BRATZA
In
the case of Protopapa v. Turkey (no. 16084/90, 24 February
2009), I voted with the other members of the Chamber in relation to
all of the Convention complaints of the applicant save that under
Article 13 which, for the reasons explained in my Partly Dissenting
Opinion, I found had been violated.
The
applicant's complaint under Article 13 in the present case is
substantially the same as that of the applicant in the Protopapa
case. While I continue to entertain the doubts which I expressed
in that case as to whether there were any remedies which could be
regarded as practical or effective and which offered the applicant
any realistic prospects of success, in deference to the majority
opinion in the Protopapa judgment, which has now become final,
I have joined the other members of the Chamber in finding no
violation of Article 13.
PARTLY DISSENTING OPINION OF JUDGE KARAKAŞ
Unlike
the majority, I consider that the objection of non-exhaustion of
domestic remedies raised by the Government should not have been
rejected.
Consequently,
I cannot agree with the finding of violations of Article 1 of
Protocol No. 1 and Article 8 of the Convention, for the same reasons
as those mentioned in my dissenting opinion in the case of Gavriel
v. Turkey (no. 41355/98, 20 January 2009).
I
voted with the majority concerning the finding of no violation of
Articles 3, 5, 6, 7, 11, 13 and 14 read in conjunction with Articles
5, 6 and 7 of the Convention.
