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<SPAN LANG="">Takis Demopoulos and Others v Turkey - 46113/99 [2010] ECHR 306 (01 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/306.html
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[2010] ECHR 306
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GRAND
CHAMBER
DECISION
AS TO THE
ADMISSIBILITY OF
Application nos.
46113/99, 3843/02,
13751/02, 13466/03, 10200/04, 14163/04,
19993/04, 21819/04
by Takis Demopoulos and
Others, Evoulla Chrysostomi, Demetrios
Lordos and Ariana Lordou Anastasiadou, Eleni Kanari-Eliadou
and Others, Sofia (Pitsa) Thoma Kilara Sotiriou and Nina Thoma Kilara
Moushoutta, Yiannis Stylas, Evdokia Charalambou Onoufriou and
Others
and Irini (Rena) Chrisostomou
against Turkey
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul Costa,
President,
Christos Rozakis,
Nicolas Bratza,
Peer
Lorenzen,
Françoise Tulkens,
Josep
Casadevall,
Giovanni Bonello,
Vladimiro
Zagrebelsky,
Lech Garlicki,
Khanlar
Hajiyev,
Ljiljana Mijović,
Egbert
Myjer,
David Thór Björgvinsson,
Ján
Šikuta,
Mark Villiger,
Päivi
Hirvelä,
Işıl Karakaş, judges,
and
Erik Fribergh, Registrar,
Having
regard to the above applications lodged on 26 January 1999,
17 January 2002, 8 March 2002, 11 April 2003, 5 March 2004, 11
March 2004, 31 March 2004 and 27 February 2004,
Having
regard to the decision of 19 May 2009 by which the Chamber of the
Fourth Section to which the case had originally been assigned
relinquished its jurisdiction in favour of the Grand Chamber (Article
30 of the Convention),
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
regard to the comments submitted by the Government of the Republic of
Cyprus as intervenor,
Having
regard to the parties' oral submissions at the hearing in Strasbourg
on 18 November 2009,
Having
deliberated on 18 November 2009 and 1 March 2010, decides on the
last-mentioned date, as follows:
THE FACTS
The
applicants are all Cypriot nationals of Greek-Cypriot origin:
46113/99: Mr
Takis Demopoulos and Mrs Eleni Demopoulos are the parents of Mrs
Elpida Apostolides (née
Demopoulos). They were born in 1922, 1933 and 1961 respectively and
live in Nicosia. They were represented before the Court by
Mr A. Demetriades, a lawyer practising in Nicosia.
3843/02: Mrs
Evoulla Chrysostomi was born in 1936 and lives in Limassol. She is
represented before the Court by Scordis, Papapetrou & Co and
Adamos K. Adamides & Co, lawyers practising in Nicosia.
13751/02: Mr
Demetrios Lordos, was born in 1943 and lives in Limassol. The second
applicant, Mrs Ariana Lordou Anastasiadou, was born in 1972 and
lives in Nicosia. They are represented before the Court by
Mr A. Demetriades, a lawyer practising in Nicosia.
13466/03: Mrs Eleni
Kanari-Eliadou, Mr Andreas Papanicolaou, Mrs Chrystofoulla
Papanicolaou and Mrs Maroulla Andrea-Hadjinicolaou were born in
1939, 1948, 1949 and 1940 respectively and live in the Nicosia
district. They are represented before the Court by Ms E. Vourkidou,
a lawyer practising in Nicosia.
10200/04: Mrs Sofia
(Pitsa) Thoma Kilara Sotiriou and Mrs Nina Thoma Kilara Moushoutta
were born in 1938 and 1936 respectively and live in Nicosia. They
are represented before the Court by Mr Ch. Clerides, a lawyer
practising in Nicosia.
14163/04:
Mr Yiannis Stylas was born in 1935 and lives in Nicosia. He
is represented before the Court by Mr C. Triantafyllides,
a lawyer practising in Nicosia.
19993/04: Mrs
Evdokia Charalambou Onoufriou, Mr Nicolas Charalambou Onoufriou, Mr
Dimitris Charalambou Onoufriou and Mr Charalambos Onoufriou
were born in 1945, 1972, 1962 and 1938 respectively. The last-named
died in 2005 and was succeeded by the other three applicants. The
remaining applicants live in Lakatamia. They are represented before
the Court by Mr A. Neocleous, a lawyer practising in Nicosia.
21819/04: Ms Irini
(Rena) Chrisostomou (née Savvopoulou), was born in 1945 and
lives in Larnaca. She is represented before the Court by Mr A.
Markides and Mr P. Polyviou, lawyers practising in Nicosia.
The
applicants were represented at the oral hearing by Mr Anderson, Q.C.,
Mr Demetriades, Mr Markides, Mr Clerides, Ms Vourkidou
Liasides and Mr Neocleous, Counsel, assisted by Ms Loizides,
Mr Paraskeva, Mr Polyviou, Mr Arakelian, Mr Angelides, Mr
Liasides and Mr Leach, Advisers. The applicants, Mr Demetrios
Lordos, Ms Evdokia Charalambou Onoufriou, Mr Dimitris Onoufriou
and Mr Nicolas Onoufriou, also attended the hearing.
The
Turkish Government (“the Government”) were represented by
their Agent, as were the Cypriot Government (“the intervening
Government”). At the oral hearing they were represented as
follows: the Government by Mr Necatigil, Agent, assisted by Sir
Michael Wood, Counsel, and Mr Talmon, Ms Karabacak, Mr Uras, Mr
Esener, Ms Akçay, Ms Akyüzlü Aylanç, Ms Akpak
and Mr Furlong, Advisers. The intervening Government were represented
by Mr Clerides, Agent, assisted by Lord Lester of Herne Hill QC, Mr
Lowe QC, Mr Saini QC, Mr Richards and Mrs Joannides,
Counsel.
A. General context
The
complaints raised in these applications arise out of the Turkish
military operations in northern Cyprus in July and August 1974 and
the continuing division of the territory of Cyprus. At the time of
the Court's consideration of the merits of the Loizidou v. Turkey
case in 1996, the Turkish military presence at the material time was
described in the following terms (Loizidou v. Turkey (merits),
18 December 1996, p. 2223, §§ 16-17, Reports of
Judgments and Decisions 1996 VI):
“16. Turkish armed forces of more than
30,000 personnel are stationed throughout the whole of the occupied
area of northern Cyprus, which is constantly patrolled and has
checkpoints on all main lines of communication. The army's
headquarters are in Kyrenia. The 28th Infantry Division is based in
Asha (Assia) with its sector covering Famagusta to the Mia Milia
suburb of Nicosia and with about 14,500 personnel. The 39th Infantry
Division, with about 15,500 personnel, is based at Myrtou village,
and its sector ranges from Yerolakkos village to Lefka. TOURDYK
(Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed
at Orta Keuy village near Nicosia, with a sector running from Nicosia
International Airport to the Pedhieos River. A Turkish naval command
and outpost are based at Famagusta and Kyrenia respectively. Turkish
airforce personnel are based at Lefkoniko, Krini and other airfields.
The Turkish airforce is stationed on the Turkish mainland at Adana.
17. The Turkish forces and all civilians
entering military areas are subject to Turkish military courts, as
stipulated so far as concerns 'TRNC citizens' by the Prohibited
Military Areas Decree of 1979 (section 9) and Article 156 of the
Constitution of the 'TRNC'.”
A
major development in the continuing division of Cyprus occurred in
November 1983 with the proclamation of the “Turkish Republic of
Northern Cyprus” (the “TRNC”) and the subsequent
enactment of the “TRNC Constitution” on 7 May 1985. This
development was condemned by the international community. On 18
November 1983 the United Nations Security Council adopted
Resolution 541 (1983) declaring the proclamation of the
establishment of the “TRNC” legally invalid and calling
upon all States not to recognise any Cypriot State other than the
Republic of Cyprus. In November 1983 the Committee of Ministers of
the Council of Europe decided that it continued to regard the
government of the Republic of Cyprus as the sole legitimate
government of Cyprus and called for respect of the sovereignty,
independence, territorial integrity and unity of the Republic of
Cyprus.
According
to the submissions of respondent Government in the inter-State case
(Cyprus v. Turkey [GC], no. 25781/94, § 15, ECHR
2001 IV), the “TRNC” was a democratic and
constitutional State which was politically independent of all other
sovereign States including Turkey, and the administration in northern
Cyprus had been set up by the Turkish-Cypriot people in the exercise
of its right to self-determination and not by Turkey. Notwithstanding
this view, the Court held that it was only the Cypriot government
which was recognised internationally as the government of the
Republic of Cyprus in the context of diplomatic and treaty relations
and the working of international organisations (ibid).
United Nations peacekeeping forces (“UNFICYP”)
have maintained a buffer-zone between the two sides. A number of
political initiatives have been taken at the level of the United
Nations by successive secretaries-general aimed at settling the
Cyprus problem on the basis of institutional arrangements acceptable
to both sides. The most notable initiative was Kofi Annan's
Comprehensive Settlement of the Cyprus Problem (also known as
“the Annan Plan”).
After four years of revisions and
negotiations, the fifth version of the Annan Plan called for
the establishment of the United Cyprus Republic (UCR), which
would include two constituent states: a predominantly
Greek Cypriot one in the south, eventually comprising about 71 %
of the land area of Cyprus; and a predominantly Turkish-Cypriot one
in the north, comprising about 29 % of the land area. Cypriots
would be citizens both of the UCR and of the appropriate constituent
state.
On
24 April 2004, the final version of the Annan Plan was presented
to the Greek and Turkish Cypriots for separate referenda. Under the
terms of the Annan Plan, the United Cyprus Republic would be
established if both sides agreed and voted yes in their respective
referenda. There were several controversies in the text, however,
such as issues of property and freedom of movement, which led to
pessimism about the likelihood of the Annan Plan successfully
passing. However, it became apparent that the Turkish-Cypriots would
vote yes on 24 April 2004, making a United Cyprus Republic
possible. The Annan plan failed to pass, however, because even though
65 % of Turkish Cypriots accepted the settlement plan, 76 %
of Greek Cypriots rejected it.
The
Annan Plan had provided for the property rights of Greek Cypriots to
be balanced against the rights of those now living in the homes or
using the land, some of them Turkish-Cypriot refugees from the south
of the island, who had lost homes of their own, but many others of
them Turkish settlers. The exact numbers of Turkish settlers was
disputed; the Cyprus Ministry of Foreign Affairs had claimed it was
over 100,000. The Plan capped the number of settlers who could be
given citizenship of Cyprus at 45,000.
Article 10
of the Annan Plan contained a detailed and complex treatment of
property claims. First, in areas subject to territorial adjustment,
properties would be restored to their former dispossessed owners. In
areas not subject to territorial adjustment, the following regime was
envisaged. Dispossessed owners (as well as institutions), who opted
for compensation would receive full and effective compensation for
their property on the basis of value at the time of dispossession
adjusted to reflect appreciation of property values in comparable
locations. Compensation would be paid in the form of guaranteed bonds
and appreciation certificates.
All
other dispossessed owners had the right to reinstatement of one-third
of the value and one-third of the area of their total property
ownership, and to receive full and effective compensation for the
remaining two-thirds. However, they had the right to reinstatement of
a dwelling they had built, or in which they had lived for at least
ten years, and up to one donum
of adjacent land, even if this was worth more than one-third of the
total value and area of their properties. Dispossessed owners could
choose any of their properties for reinstatement, except for
properties that had been exchanged by a current user or bought by a
significant improver in accordance with the scheme. A dispossessed
owner whose property could not be reinstated or who voluntarily
deferred to a current user had the right to another property of equal
size and value in the same municipality or village. They could also
sell their entitlement to another dispossessed owner from the same
place. The latter could in turn aggregate it with their own
entitlement.
Current
users (defined as persons who had possession of properties of
dispossessed owners as a result of an administrative decision) could
apply for and would receive title of the property, if they agreed in
exchange to renounce their title to a property of similar value in
the other constituent state, of which they were dispossessed. Persons
who owned significant improvements to properties could apply for and
would receive title to such properties provided they paid for the
value of the property in its original state. Furthermore, current
users who were Cypriot citizens and were required to vacate property
to be reinstated would not be required to do so until adequate
alternative accommodation had been made available.
Property
claims would be administered by “an independent, impartial
Property Board, governed by an equal number of members from each
constituent state, as well as non-Cypriot members”.
Article 5 (2)
of Annex VII required that the “United Cyprus
Republic...pursuant to Article 37 of the European Convention on Human
Rights... and invoking the fact that the Foundation Agreement is
providing a domestic remedy for the solution of all questions related
to affected property, inform the European Court of Human Rights ...
that the United Cyprus Republic shall therefore be the sole
responsible State Party and request the Court to strike out any
proceedings currently before it concerning affected property in order
to allow the domestic mechanism agreed to solve these cases to
proceed.”
Under the limits which Article 3 of the Annan
Plan would place on the numbers of former residents allowed to
return, only over-65s would have been able to go back to their homes
between the second and fifth years; returnees could amount to no more
than six per cent of the population of the village up to the ninth
year, 12 % up to the fourteenth year and 18 % up to the
19th year or Turkey's accession to the European Union, whichever came
earlier.
B. The particular circumstances of the cases
The
facts of the cases, as submitted by the parties, may be summarised as
follows.
All
the applicants, Greek Cypriots, claimed to own or partly own
immovable and/or movable property in the northern part of Cyprus
under the control of the “TRNC”. The
applicants claimed that since August 1974 they had been deprived of
their property rights, all their property being located in the area
which is under the occupation and the control of the Turkish military
forces. The latter prevented them from having access to and from
using and enjoying their homes, property and possessions in northern
Cyprus. Details of all properties were contained in the Court's
case-files.
1. Demopoulos and Others 46113/99
19. The
first applicant stated that he owned seventeen plots of land in
Morphou. These plots were surrounded by fences, planted with trees
and consisted of a residence, storage rooms and water installations.
Moreover, he claimed to own a further nine plots of land situated in
Morphou. One of these plots had been separated into nine building
sites. The applicant had intended to turn the remainder of the plots
into building sites and had to that effect lodged applications with
the land authorities. Furthermore, he stated that he owned or partly
owned two plots of land situated in Galini, on one of which he had
planned to build a hotel.
20. The
second applicant claimed to own five plots of land situated in Galini
as well as half a share in a plot of land in Derinia. In addition,
she owned six plots of land in Kato Zodia, that she had intended to
turn into building plots.
21. Finally,
the third applicant claimed to be the owner of a plot of land in
Morphou and a house built thereon, as well as the latter's contents
which comprised a collection of antiques and a selection of domestic
equipment. Ownership of this property had been transferred to her by
her father (the first applicant) in 1997. This house had been the
family home of all the applicants.
22. On
28 May 2003, the applicants sought to add nine further properties to
their application. On 27 June 2008, they sent a letter identifying
eleven more properties.
2. Chrysostomi 3843/02
The
applicant claimed to be the owner of six plots of land in the town of
Famagusta as well as two plots of land in the village of Dherynia.
She was also the owner of, inter alia, two houses, one of
which was the home where she had lived with her family, an orange
grove and four shops, all situated on certain of the above-mentioned
plots of land. These properties had been transferred by way of gift
to the applicant by her mother on 6 June 1974. She maintained that
from then onwards the income from renting out the four shops and from
the produce of the orange grove had belonged to her.
3. Lordos and Lordou Anastasiadou 13751/02
The
applicants were father and daughter. They were both born and raised
in Famagusta. The first applicant claimed to be the owner or part
owner of a substantial amount of immovable property situated in
Famagusta and Kyrenia (169 listed items). This included a
considerable number of plots of land, buildings, flats, shops, houses
and hotels: there were listed approximately 134 plots of land and/or
building sites and/or fields, 17 flats, six shops, three buildings,
four houses and two hotels. Some of the property was acquired before
1974; other property was obtained by transfer or inheritance
subsequently. Furthermore, both applicants had had their home in
Famagusta in property in an apartment block purchased by the first
applicant for himself, his wife and his daughter, the second
applicant.
4. Kanari-Eliadou and Others 13466/03
The
applicants were all born and raised in the village of Ayios Georgios,
Kyrenia. The second and third applicants were husband and wife.
The
applicants claimed to own the following immovable property in the
district of Kyrenia: the first applicant owned a plot with a fully
furnished house, which had been acquired in 1962 and had been used as
her home. The second applicant owned five plots of land, one of which
was cultivated with olive trees, and the title of which had been
registered in the applicant's name on 29 August 1989. The third
applicant owned a plot with a house, one floor of which had been used
partly as the home of the second and third applicants and the other
rented out. The fourth applicant owned, in whole or part, 30 plots of
land, including one plot with a fully-furnished house and the others
consisting of fields or plots with lemon or olive trees. The title of
some property had been registered in the applicant's name after 1974.
5. Sotiriou and Moushoutta 10200/04
The
applicants claimed to be owners of immovable property in the
districts of Kyrenia and Nicosia (the part under the control of the
Turkish armed forces). The first applicant owned, wholly or in part,
seven properties: six fields and one plot with house and garden. The
second applicant owned, wholly or in part, three properties: two
fields with trees and a building site with trees. Some of these
properties were acquired after 1974 by inheritance.
6. Stylas 14163/04
The
applicant claimed to be the owner or part owner of the following
immovable property in the district of Nicosia (the part under the
control of the Turkish armed forces): five plots with house and
garden, ten plots consisting of a field and a plot of a field
containing olive trees (details contained in the file). Some of the
properties were owned by the applicant before 1974; other properties
were inherited since.
7. Charalambou Onoufriou and Others 19993/04
The
applicants were a family. The first and fourth applicants were
husband and wife and the second and third applicants their sons. They
were all from Morphou.
The
first, second and third applicants claimed to own, or partly own, the
following immovable property in Morphou, in the District of Nicosia:
the first applicant owned four properties, a house with a barn, byre
and garden which was the home of the applicants, a plot with orange
trees and two fields; the second applicant owned four plots (two
orange groves and two fields) acquired by gift from his father in
1996; the third applicant owned five plots (three fields and two
gardens) acquired by way of gift from his parents in 1996. The
deceased fourth applicant owned a third share in an orange plantation
and two rooms, acquired on 18 September 1997 by way of gift from his
father. In 2006, the first applicant transferred her properties to
the second and third applicants.
8. Chrisostomou 21819/04
Before
20 July 1974 the applicant used to live in the town of Famagusta. She
claimed to be owner, in whole or part, of eight plots of immovable
property in Famagusta and Derynia, including buildings, two
apartments (one of which was her home), a shop and fields. Some
properties were transferred into her name after 1974. Most of the
properties were in a closed area under the direct military control of
Turkey.
9. The Government's position
The
Government submitted that the applicants had not established the
basic facts. They had not produced evidence to show that, according
to the Land Registry authorities in the south, they were the current
owners of the properties in question. Nor had they shown that they
had proof of title in 1974. None of the applicants had made an
application to the Immovable Property Commission for restitution or
compensation in respect of their property claims.
C. Relevant domestic law and practice
1. “Constitution of the Turkish Republic of
Northern Cyprus” (the “TRNC”) of 7 May 1985
Article
159 (1) (b) and (c) in so far as relevant provides as follows:
“(b) All immovable properties, buildings and
installations which were found abandoned on 13 February 1975 when the
Turkish Federated State of Cyprus was proclaimed or which were
considered by law as abandoned or ownerless after the above-mentioned
date, or which should have been in the possession or control of the
public even though their ownership had not yet been determined ...
and (c) ... shall be the property of the TRNC notwithstanding the
fact that they are not so registered in the books of the Land
Registry Office; and the Land Registry Office shall be amended
accordingly.”
Article
159 (4) reads as follows:
“In the event of any person coming forward and
claiming legitimate rights in connection with the immovable
properties included in subparagraphs (b) and (c) of paragraph (1)
above [concerning, inter alia, all immovable properties,
buildings and installations which were found abandoned on 13 February
1975], the necessary procedure and conditions to be complied with by
such persons for proving their rights and the basis on which
compensation shall be paid to them, shall be regulated by law.”
2. Law for the compensation, exchange and restitution of immovable
properties which are within the scope of sub-paragraph (b) of
paragraph 1 of Article 159 of the Constitution, as amended by Law
nos. 59/2006 and 85/2007 (hereinafter “Law 67/2005”)
Law
67/2005 came into effect on 22 December 2005. This Law provided that
all natural and legal persons claiming rights to immovable or movable
property might bring a claim before the Immovable Property Commission
(“IPC”) until 21 December 2009 subject to a fee of
100 Turkish liras (TRY) for each application (section 4). On 22
October 2009, this deadline was extended by the Parliament of the
“TRNC” until 21 December 2011. Under the provisions
of the Law, the burden of proof rests upon the applicant who must
prove beyond a reasonable doubt that, inter alia, the
immovable property was registered in his name on 20 July 1974 (or
that he is the legal heir to such a person), that he owned the
movable property before 13 February 1975 and was forced to
abandon it due to conditions beyond his own volition; and that
according to the Land Registry records there are no other persons
claiming rights to the claimed immovable property (section 6).
The
IPC has the duties and powers to examine and reach decisions on
applications, determine the amount and method of payment of
compensation, collect written or oral testimony or hear witnesses,
summon any person residing in the "TRNC" to give testimony
or produce any document in his possession, to compel a person to give
evidence or produce a document in his possession, to award expenses
to any persons summoned (section 13). The decisions of the IPC have
binding effect and are of an executory nature similar to judgments of
the judiciary and such decisions shall be implemented without delay
upon service on the authorities concerned (section 14). It is an
offence to refuse to produce any document or information required by
the IPC or to fail to appear, or give evidence without legal excuse,
a fine of TRY 2,000 being imposable on conviction (section 15) The
Ministry responsible for financial affairs must make provision under
a separate item of the Budget Law for each year for the payment of
compensation awarded by the IPC and other expenses incurred by the
application of the Law (section 18).
The
provisions concerning the redress available are set out below in
full:
“Hearing and Reaching a Decision
8. The Commission, after having heard the arguments of
the parties and witnesses, and having examined the documents
submitted, shall, within the scope of the purposes of this Law,
taking into consideration the below-mentioned matters, decide as to
restitution of the immovable property to the person whose right in
respect to the property has been established, or to offer exchange of
the property to the said person, or decide as to payment of
compensation. In cases where the applicant claims compensation for
loss of use and/or non-pecuniary damages in addition to restitution,
exchange or compensation in return for immovable property, the
Commission shall also decide on these issues.
(1) Immovable properties that are subject to a claim for
restitution by the applicant, ownership or use of which has not been
transferred to any natural or legal person other than the State, may
be restituted by the decision of the Commission within a reasonable
time period, provided that the restitution of such property, having
regard to the location, and the physical condition of the property,
shall not endanger national security and public order and that such
property is not allocated for public interest reasons and that the
immovable property is outside the military areas or military
installations.
(2) If the restitution of an immovable property, other
than property described in paragraph (1) above, is claimed by the
applicant, the following rules shall apply, provided that the said
immovable property has not been allocated for public interest or
social justice purposes.
(A) If the increase in the value of the immovable
property due to improvement made on such property between the date it
was abandoned and the date of application with the Commission for
restitution, is less than the value of the property when it was
abandoned; or if there is no increase in the value of property
between these dates; or if no project was approved by competent
authorities that would cause such an increase; or if this immovable
property is not property of equal value in accordance with the
legislation in force, which has been acquired by any person in
exchange of property left in South Cyprus, such person having had to
leave the south of Cyprus and to move to the North, the decision for
restitution of such property may take effect after the settlement of
the Cyprus Problem, in line with the provisions of the settlement. In
such a case, the person who is in possession or holds the ownership
of the property in question under the legislation in force but would
have to abandon the property after a settlement, shall not have to do
so unless such person has been provided with compensation or
alternative accommodation under the provisions of the settlement.
As from the date of the announced decision of the
Commission no construction shall be permitted on the immovable
property that would be restituted after the settlement of the Cyprus
Problem within the framework of the provisions of the settlement or
in any event within a 3-year period; such immovable property cannot
be improved, purchased or sold. However, the Ministry may permit the
improvement of such property in a way that is also beneficial for the
applicant. The principles governing the issue of permits under this
sub-paragraph shall be regulated by rules.
Natural or legal persons who under the legislation of
the Turkish Republic of Northern Cyprus, are in possession or hold
the ownership of property to be reinstated after a settlement, shall
have the right to be compensated for the damage caused by such a
decision of the Commission or to apply to the authorities, in order
to have the property they own or possess purchased by the
authorities. If this right is not exercised, the immovable property
to be reinstated after a settlement, shall, prior to restitution, be
expropriated in accordance with the legislation in force.
(B) If the increase in the value of the immovable
property as a result of the improvement made to such property between
the date it was abandoned and the date of the application to the
Commission for its restitution is more than the value of the property
at the time it was abandoned; or if a project that would cause such
an increase in the value of the property has been approved by the
competent authorities, the claim of the applicant for restitution
shall be subject to the provisions of paragraph 3, below.
(3) If the applicant claims restitution of immovable
property and such an immovable property is not immovable property
within the provisions of paragraph (1) and sub-paragraph (a) of
paragraph (2) of this section, a proposal for exchange may be made,
or compensation may be awarded to such person. The compensation shall
be determined on the basis of the market value of the immovable
property on 20 July 1974, and, if claimed, on the basis of damages
for loss of use and non-pecuniary damages due to the loss of the
right to respect for home.
(4) If the applicant applies to the Commission with a
claim for compensation in return for immovable property and the
Commission decides in favour of the applicant; or if the Commission
decides to award an applicant compensation in return for the
immovable property, the compensation to be paid shall be determined
on the basis of the following criteria:
(A) If the immovable property is a building its market
value on 20 July 1974, taking into consideration the date of its
construction.
(B) Loss of income and increase in value of the
immovable property between 1974 and the date of payment.
(C) Whether the applicant is in possession of any
immovable property in the south of Cyprus owned by citizens of the
Turkish Republic of Northern Cyprus.
(D) Whether the applicant is receiving income from such
property; if so, the amount of such income; whether such person is
paying rent in respect of immovable property in his possession in the
South which is owned by any citizen of the Turkish Republic of
Northern Cyprus; if so, the amount and the identity of the
beneficiary of rent.
(E) The non-pecuniary damages which the Commission shall
decide in favour of the applicant shall be assessed having regard to
the manner of the use of the property, as well as the establishment
of individual, family and moral links to such immovable of the
applicant on the date the property had to be abandoned.
(F) Where compensation is decided to be awarded for
movable property, the amount shall be the market value of such
property at the time the Commission reaches its decision.
(5) In cases where the applicant claims exchange or
where the Commission decides to propose exchange to the applicant,
the current market value of the immovable property to be proposed for
exchange shall be approximately equal to the current market value of
the immovable property on which the applicant has a right. If the
property which is proposed to the applicant in exchange is of a value
higher than the value of the property on which he claims a right, he
shall pay the Commission the difference between the two values. If
the property which is proposed to the applicant is of a value lower
than the value of the property on which a right is claimed, the
difference between the two prices shall be paid by the Commission to
the applicant.
If exchange is decided upon, precedence shall be given
to the evaluation of the immovable property forming the subject
matter of the applicant's application, which the owner or user
thereof had to leave in the South.
The rights of the person applying to the Commission for
exchange of property shall be reserved in respect of claims for
compensation for loss of use and non-pecuniary damage due to loss of
the right to respect for home.
(6) Upon the request of the applicant, the Commission
may award restitution, exchange, compensation in return for rights
over the immovable property and compensation for loss of use if
claimed.
Right to Apply to Court
9. Parties have the right to apply to the High
Administrative Court against the decisions of the Commission. If the
applicant is not satisfied with the judgment of the High
Administrative Court, he may apply to the European Court of Human
Rights.
Loss of Ownership Upon Exchange of Property or Award of
Compensation
10. (1) Applicants who receive compensation in return
for their rights over immovable properties in virtue of the
application of the provisions this Law, can under no condition, make
a claim of right of ownership over immovable property for which they
have received compensation.
(2) Applicants who receive new immovable property by way
of exchange in virtue of the application of the provisions of this
Law, can, under no condition, make a claim to a right of ownership
over the immovable property on which their application was based.
Composition of Immovable Property Commission
11. (1) For the implementation of this Law, an Immovable
Property Commission composed of a President, a Vice-President, and
minimum 5, maximum 7 Members, whose qualifications are specified
below, shall be established. At least 2 members of the Commission to
be appointed shall not be nationals of the Turkish Republic of
Northern Cyprus, United Kingdom, Greece, Greek Cypriot Administration
or Republic of Turkey. The decisions regarding the appointment of the
members shall be published in the Official Gazette.
(A) The President, Vice-President and the Members of the
Commission shall be appointed by the Supreme Council of Judicature
from among persons nominated by the President of the Republic. The
President of the Republic shall nominate a number of candidates twice
the number of members to be appointed.
(B) The President, Vice-President and Members of the
Commission may be appointed from among lawyers or from among persons
with experience in public administration and evaluation of property.
Any persons directly or indirectly deriving any benefit
from immovable properties on which rights are claimed by those who
had to move from the north of Cyprus in 1974, abandoning their
properties, cannot be appointed as members of the Commission.
(C) (a) The salary of the President of the
Commission is equivalent to the salary received by a Supreme Court
Judge at initial appointment. ...
(c) Upon approval by the Council of Ministers,
foreign members of the Commission may also receive an appropriation
payment of a certain amount.
(2) The Commission shall convene by minimum
two-third majority of the total number of members and shall take
decisions by simple majority of the members attending the meeting,
including the President.
(3) The term of office of a member not participating in
the Commission meetings without a valid reason (illness, official
duty abroad, and the like) for three times, may be terminated by the
Supreme Council of Judicature upon the request of the President of
the Commission. The term of office of the President of the Commission
not participating in the Commission meetings without a valid reason
(illness, official duty abroad, and the like) for three times, may be
terminated by the Supreme Council of Judicature upon the request of
the President of the Republic. In other cases, the conditions for the
termination of the term of office of a member of the Commission shall
be the same as those applied to a Supreme Court Judge.
(4) A secretariat shall be established in order to carry
out the clerical and administrative work of the Commission. A
sufficient number of personnel shall be employed in the secretariat
upon the proposal of the President of the Commission and in
accordance with the authorisation of the Council of Ministers.
Employment of personnel under this section may be on a contractual
basis. The number of personnel employed in this manner shall be no
more than 10.
However, if the President of the Commission reaches a
conclusion that the secretariat is not able to carry out its legal
obligations within a reasonable period of time, he has the authority
to employ an additional number of personnel on contract, subject to
the authorisation of the Council of Ministers.
(5) All employees of the Commission, including the
President, Vice-President and Members, shall be employed as long as
their services are required and subject to conditions determined by
the Council of Ministers, notwithstanding any provision to the
contrary in any other law relating to employment of service, duration
of service, age limit, duration of contract, renewal of contract and
conditions of retirement.
(6) The President, Vice-President and Members of the
Commission shall not hold any other office during their term of
office.
(7) Decisions taken shall be served on those concerned
with the signature of the President and at least one Member.
Duration of Term of Office of the President,
Vice-President and Members of the Commission
12. The President, Vice-President and Members of the
Commission established in accordance with the provisions of this Law
shall be appointed for a period of 5 years. At the end of this period
the President, Vice-President and Members may be re-appointed in the
same manner. The President, Vice-President and Members of the
Commission shall carry out their duties objectively and independently
during their term of office which may only be terminated before the
end of term subject to the provisions of section 11, above. No person
or authority can give any order or instruction to the President,
Vice-President and Members of the Commission.”
3. Judgment of the “TRNC” Constitutional Court in case
no. 3/2006
In
this case, the plaintiffs had filed applications claiming that Law
67/2005 was unconstitutional as contrary to Article 159 of the
Constitution and should be annulled.
The
“TRNC” Constitutional Court rejected these applications.
It had regard to international conventions and treaties concerning
human rights and the elimination of discrimination as well as texts
and agreements under international law concerning property in
occupied areas and decisions and judgments of this Court, in
particular what was said about the scope of any effective remedy for
property complaints in the decision on admissibility in
Xenides-Arestis v. Turkey ((dec.) no. 46347/99, 14 March
2005). It considered that it should interpret the Constitution in a
manner such as to reconcile it with international law and held that
it was not contrary to the Constitution for restitution of possession
to be made and compensation to be paid to Greek-Cypriot right owners.
4. Cases before the Immovable Property Commission (“IPC”)
As
of the date of the hearing in November 2009, the number of cases
brought before the IPC stood at 433. Of these, 85 had been concluded,
the vast majority by means of friendly settlement. Only a handful of
decisions not based on a settlement had been issued. In four cases,
the IPC had ordered restitution and compensation, in two cases,
exchange of property was agreed, in one case the applicant agreed to
restitution on resolution of the Cyprus problem. In more than 70
cases, compensation had been awarded. Some 361,493 square metres of
property had been restituted and approximately 47 million euros paid
in compensation.
COMPLAINTS
The
applicants complained under Articles 8 of the
Convention and 1 of Protocol No. 1 that they had been deprived of the
use of their property and/or access to their homes in northern Cyprus
which was under the control of the “TRNC”.
42. All
applicants save for the applicant in Chrisostomou
(no. 21819/04) complained under Article 14 of the Convention.
43. The
applicants in Sotiriou and Moushoutta
(no. 10200/04) and Stylas
(no. 14163/04) also complained under Article 13 of a lack of
an effective remedy in respect of their Convention rights under
Articles 8 of the Convention and 1 of Protocol No. 1.
The
applicant in Stylas
(no. 14163/04) complained of a continuing violation of Article
18 of the Convention in view of the violations of his rights under
the above-mentioned provisions.
THE LAW
The
applicants argued principally that they had been prevented from
enjoying their property and homes following the invasion of northern
Cyprus by Turkey in 1974, and that they had been victims of
discrimination, invoking the following provisions of the Convention.
Article
8 of the Convention as relevant provides:
“1. Everyone has the right to respect for...
his home ....
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.”
Article
1 of Protocol No. 1 provides:
“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.”
Article
14 of the Convention provides:
“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.”
Several
applicants also invoked Article 13 which requires the provision of an
effective remedy for violations of the rights and freedoms set out in
the Convention, and in one case, complaint was made under Article 18
which prohibits the restrictions permitted to Convention rights being
applied for any other purpose than those for which they have been
prescribed.
I. CONCERNING ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
The
Government disputed the applicants' claims. They had raised a number
of objections to admissibility in their observations before the
Chamber. They had submitted that the complaints fell outside the
temporal jurisdiction of the Court and that the acts which
took place within the “TRNC” were not under the
responsibility of Turkey. They further submitted in particular that
the applicants had failed to exhaust domestic remedies.
The
Court recalls that it has considered the Government's objections of
inadmissibility ratione loci and ratione temporis in
previous cases and rejected them (Loizidou case (op. cit.),
Cyprus v. Turkey, §§ 69-81, cited
above, and Xenides-Arestis, decision on admissibility cited
above). Nor have the Government submitted further argument on these
matters in their submissions before the Grand Chamber. It will
therefore proceed to examine the Government objection concerning
domestic remedies alone.
A. Submissions before the Court on exhaustion of domestic remedies
1. The Government
The
Government recalled that in Xenides-Arestis v. Turkey
(no. 46347/99) the Court set in train a pilot-judgment
procedure, adjourning all other cases, to examine the former Law No.
49/2003. After it was found not to provide an effective remedy, the
“TRNC” enacted Law 67/2005, setting up the new Immovable
Property Commission (“IPC”) and taking full account of
the indications given by the Court in its decision on admissibility.
When adopting the judgment on just satisfaction, the Court had
welcomed the steps taken by the Government to provide redress in this
and the other pending cases and stated:
“that the new compensation and restitution
mechanism, in principle, has taken care of the requirements of the
decision of the Court on the admissibility of 14 March 2005 and the
judgment on the merits of 22 December 2005..” (Xenides-Arestis
v. Turkey (just satisfaction), no. 46347/99, § 37, 7
December 2006)
This
had, in their view, settled the matter of remedies for the future.
The
Government submitted that the remedy established at the Court's
instigation was effective and accessible. The Law had been published
in Greek and English in a Cyprus newspaper and received wide media
coverage. It was emphasised that while Article 159 of the
Constitution had seemed to exclude on its face any restitution or
compensation, the “TRNC” Constitutional Court had
rejected a challenge to the constitutionality of the law, holding
that Article 159 had to be interpreted in conformity with
international law and the European Convention of Human Rights and did
not prevent return of property, exchange of property or compensation.
It had also relied on Xenides-Arestis as setting out the range
of redress that must be made available.
The
Government submitted that immediate restitution was possible if
properties had not been transferred to another natural or legal
person other than the State, for example displaced Turkish Cypriots,
or were not located in military areas. Where properties were
currently used for roads, schools or hospitals, restitution could
also be excluded for public interest reasons which were recognised in
domestic and international law. Restitution was also provided for in
certain circumstances once the Cyprus problem was settled. They noted
that restitution would not be feasible in all cases, or immediately,
as had been acknowledged in the Annan Plan. There had been
considerable land transactions in the northern area over the years
and the Convention rights of third parties also had to be protected.
The new Law was designed to establish a fair balance between these
conflicting rights. Providing for restitution without regard to the
present occupants might also endanger public order and peace in both
communities on the island.
Where
restitution was not possible, there could be exchange of property
with equivalent Turkish-Cypriot property in the south or
compensation, determined by the IPC on an equitable basis taking into
account the market value in 1974 and increase in value since. Loss of
use could be compensated for from 1974, an earlier date than that
taken by the Court. Compensation could be paid for movable property
(seven applicants had so claimed, of which two cases had been
concluded to date). Non-pecuniary damage could be given for home,
taking into account personal and family links to the property in
question.
The
Government submitted that the IPC was independent and impartial, the
members not subject to removal save as provided for by law nor
subject to any instructions. Persons with interests in disputed
property were excluded and there were two international members who
were jurists of outstanding reputation. Their decisions were binding
and to be implemented on service. As regarded procedure, an
application form was available in Turkish, English and Greek, as was
an information leaflet; Secretariat staff were available to give
information and assistance in English and Turkish. All material
relating to the applications were translated into English for the
international members. Land registry records in Greek were accepted
by the IPC. Where meetings were attended by the international
members, the proceedings were conducted in English; in other cases,
the hearings were conducted in Turkish but translation into English
or Greek provided upon request. The first hearing on the merits was
generally a “mention meeting” at which the possibility of
settling the case amicably was broached. If no friendly settlement
was reached, a public hearing of the IPC was scheduled. A reasoned
decision had to be given within three months, extendable to six
months, following which there was appeal to the High Administrative
Court. It was to be noted that most applications were ended with a
settlement at the mention stage. Only a few decisions not based on a
settlement had issued so far and no appeals had been made to the High
Administrative Court. In four cases, the IPC had ordered restitution
and compensation, in two cases, exchange of property had been agreed.
It was evident that most claimants did not apply for restitution,
preferring to obtain financial compensation.
The
Government asserted that Law 67/2005 created a legally valid domestic
remedy for the purpose of the Convention: this was not affected by
the fact that it was created by “TRNC” legislation, the
Court's case-law indicating that the “TRNC” could
establish legally valid domestic law. Any other approach would imply
that the Xenides-Arestis judgment had directed Turkey to
create an unlawful remedy.
The
remedies available in the “TRNC” were to be regarded as
domestic remedies of the respondent Government as was
well-established in the Court's case-law. They were not limited to
residents of northern Cyprus as since 23 April 2003 Greek Cypriots
had free access to the north. However, the Cypriot Government had
been making repeated efforts to mislead, intimidate and discourage
Greek Cypriots from making use of the IPC. They considered that the
statements by claimants which were critical of the IPC and which had
been taken by police officers instructed by the Cyprus Government for
the purposes of the hearing should be regarded as unreliable in those
circumstances.
Finally,
the Government stated that it had cooperated fully and in good faith
with the Court in bringing the pilot-judgment procedure to a
successful conclusion. The applicants should therefore be required to
exhaust the available and effective remedy provided under Law
No. 67/2005.
2. The applicants
The applicants submitted that they should not be expected to exhaust
a remedy which only became available several years after the
introduction of their complaints. They argued that, as a rule, the
assessment as to exhaustion of domestic remedies should be carried
out with reference to the date on which the applications were lodged.
There were no exceptional circumstances to justify a departure from
this rule, in particular since these cases had been pending for some
years and it would be particularly unjust given the advanced age of
many applicants. The applicants also emphasised that the IPC remedy
was operated by the authorities of an entity widely resented and
distrusted by Greek Cypriots and universally viewed (save in Turkey)
as an unlawful occupier. Many property owners felt unable to submit
to, or effectively collaborate with, an occupying power in such a
way. It was important to note that Turkey had failed to acknowledge
responsibility for any violations in this area, nor had it returned
property in the Loizidou and Xenides-Arestis cases, or
three years later, paid the latter applicant the award of just
satisfaction, showing a consistent practice of failing to comply with
Court judgments. They also stressed that the purported remedy was
inconsistent with Article 159 of the “TRNC” Constitution,
which continued in force with extensive associated legislation and
demonstrated the absence of any genuine commitment to remedying the
systemic defects. Further, there was a continuing policy and practice
to prevent the return of Greek Cypriots, reinforced by sale and
development of their land, and visa provisions impeding permanent
return.
The
applicants submitted that, in cases of interference with property,
restitution should be automatic in the absence of material
impossibility. Denial of owners' rights could not be justified by the
need to rehouse Turkish Cypriots, and any interference with the
rights of current users would be justified as necessary to protect
the rights of the owners. The applicants were not interested in
compensation calculated on the basis of a de facto
expropriation and could not be required to surrender the property
rights repeatedly confirmed by the Court. Return of property was only
likely to occur under the Law in very limited circumstances, due to
the numerous and widely-framed exceptions. The remedy of exchanging
property was also highly problematic since neither the IPC nor “TRNC”
authorities had any authority over properties in the south. If few
people had applied for restitution, it was because they and their
advisers saw that this was not a genuine possibility. In the
applicants' view, far from remedying the systemic defect, the Law
67/2005, which conferred a limitless discretion and lacked legal
certainty, clarity, accessibility and transparency, actively
reinforced it.
As
regarded the composition of the IPC, they noted that the two
international members were outnumbered by their colleagues and there
was doubt as to their ability to participate fully in the proceedings
due to language. The independence of the other members was not
assured given that they were appointed by the “President”
and were re-appointed by him after five years. In practice, the
remedy was shown to fall short of Article 6 standards, the experience
of claimants showing, inter alia, no proper mechanism being
applied to determine compensation, a practice of radical
under-compensation, no compensation being awarded for loss of use,
hardly any restitution of land, lack of proper translation or
interpretation facilities, discriminatory requirements for Turkish
Cypriot property valuations and legal representation, excessive
delays, sharp practice and deception, unofficial “negotiations”
with an IPC member outside a hearing and the securing of a settlement
by payment of a “commission” by the applicant's lawyer to
IPC members and failure to give reasoned judgments. Undue obstacles
were imposed by the high criminal standard of proof and the stringent
requirements of title. The witness statements put forward by the
intervening Government showed that the procedure was completely
inadequate and desperately slow and that the IPC seemed to see itself
primarily as a forum for negotiation, in which claimants were put off
by purported obstacles to their claims, derisory offers, pressure and
threats. Nor did the IPC disclose any willingness to identify issues
and resolve them in a principled and reasoned manner. The applicants
considered that the statistics showed a small and decreasing number
of claimants, indicating that it was not viewed as an effective
remedy.
The
applicants noted that Turkey had appealed to the administrative
convenience of the Court, overburdened by cases, but submitted that
this was a weak, and dangerous argument, as requiring these
applicants to resort to an ineffective remedy would give a wrong
signal to Contracting States in any future pilot judgments, thus
creating more, not less, work for the Court.
In
the very specific circumstances of their cases, the applicants
submitted that they were absolved from the obligation to apply to the
IPC. They supported the invitation of the intervening Government that
the Court should reconsider its previous finding that the requirement
to exhaust “TRNC” remedies was not excluded in limine
(Cyprus v. Turkey, cited above, § 98).
3. The intervening Government
The
Government of the Republic of Cyprus submitted that the Turkish
Government's admissibility challenge was an abuse of the
pilot-judgment procedure since, rather than being designed to provide
redress for systemic violations and reinforce the effectiveness of
the Court, it was an attempt to legitimise their unlawful mass
appropriation of Greek-Cypriot properties. It was the precondition of
any pilot-judgment procedure that the respondent Government should
abide by the Court's judgments; the Turkish Government showed a
continuing and deliberate flouting of such judgments as indicated by
the Xenides-Arestis case, where no property had been returned
or compensation paid. Also, the provision of compensation machinery
could only be seen as an adequate remedy where the authorities had
taken reasonable steps to comply with their obligations by preventing
as far as possible any occurrences or repetition of the acts in
question (Frederiksen and Others v. Denmark, no. 12719/87,
Commission Decision of 3 May 1988, Decisions and Reports (DR) 56, p.
237, at p. 244).
They
argued that the rule of exhaustion of domestic remedies, as
well-established in customary international law, only required the
applicants to exhaust Turkish remedies; Turkey insisted the IPC was a
“TRNC” remedy. They respectfully submitted that the
Court's conclusion in Cyprus v. Turkey that remedies available
in the “TRNC” might be regarded as “domestic
remedies” of Turkey be reconsidered. Nor could the applicants
be required to have recourse to any Turkish remedy either as there
was no relevant connection between Greek Cypriots and the occupiers
who had only assumed de facto jurisdiction by the unlawful use
of force. An invader could not impose on the people whose land it had
occupied by force its own procedures for complaints about its
violations of human rights.
Further,
the 2005 Law was null and void, not only because, under international
law, it was the product of an unlawful legislature but because its
purported legal basis was Article 159 of the “TRNC”
Constitution which the Court had held must not be recognised and also
because its purported basis was discriminatory. The “Namibia
exception” was not sufficiently broad to confer recognition on
otherwise invalid measures of the “TRNC”; it concerned
routine events of everyday private life, not the determination of
challenges to the large-scale taking of the property of foreign
citizens in violation of the Convention and international law. To
adopt any other approach would plainly involve both recognition of
and assistance to the “TRNC” contrary to the
international legal order.
In any event, the applicants could not be required to show that they
had exhausted the remedy under the 2005 Law as their complaints
concerned a denial to Greek Cypriots of access to homes and property
which continued to be a matter of policy and practice by Turkey and
it would be oppressive, discriminatory and unfair to require them to
do so. The whole basis and origin of the Law 67/2005 was Article 159,
both of which were based on an approach to the principle of
bizonality which amounted to ethnic cleansing. The 2005 Law did not
put an end to the discrimination which was at the heart of systemic
dysfunction. Article 159 had to be repealed and the title of Greek
Cypriots had to be recognised and all Greek Cypriots be allowed to
return to their homes.
Finally,
the remedies provided under the 2005 Law were wholly inadequate and
ineffective in practice. Restitution was unavailable save in rare
instances whereas it should be the primary remedy unless it was
impossible; accepting compensation only as a remedy would legitimise
the compulsory acquisition of private property by an aggressor State
in occupation of another state's territory. Additionally, there was
no means of establishing a breach of Convention rights; the
calculation of compensation was defective (an analysis showed that
only 3-6% of actual losses was being awarded); the membership of the
IPC violated Article 6 as the members were reliant on Presidential
indulgence to be appointed or re-appointed and had close relatives
who have interests in Greek Cypriot property as did members of the
“TRNC” High Administrative Court which sat on appeal.
They further criticised the IPC inter alia for the following
defects; it was essentially a “bargaining” process in
which vulnerable applicants were at a disadvantage, no reasons were
given, there were serious linguistic barriers, delays, a lack of
clarity as to which currency compensation was being paid in (whether
Cypriot pounds or pounds sterling); an unjustifiable burden on
applicants to prove no other persons claimed rights in the property
or that there were no mortgage or charging orders on the property, as
well as the inappropriate imposition of a criminal standard of proof
beyond reasonable doubt and no provision for the payment of legal
costs and expenses.
B. Exhaustion of domestic remedies
1. Article 35 § 1 of the Convention
This
provides:
“1. The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a
period of six months from the date on which the final decision was
taken.”
2. General principles of exhaustion
It
is primordial that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human
rights. This Court is concerned with the supervision of the
implementation by Contracting States of their obligations under the
Convention. It cannot, and must not, usurp the role of Contracting
States whose responsibility it is to ensure that the fundamental
rights and freedoms enshrined therein are respected and protected on
a domestic level. The rule of exhaustion of domestic remedies is
therefore an indispensable part of the functioning of this system of
protection. States are dispensed from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal system and those who
wish to invoke the supervisory jurisdiction of the Court as concerns
complaints against a State are thus obliged to use first the remedies
provided by the national legal system (see, amongst many authorities,
Akdivar and Others v. Turkey, 16 September 1996, §
65, Reports 1996 IV). The Court cannot emphasise enough
that it is not a court of first instance; it does not have the
capacity, nor is it appropriate to its function as an international
court, to adjudicate on large numbers of cases which require the
finding of basic facts or the calculation of monetary compensation –
both of which should, as a matter of principle and effective
practice, be the domain of domestic jurisdictions.
The
Court would refer to its classic and comprehensive statement set out
in the Akdivar judgment (cited above, §§ 66-69)
concerning the application of the rule of exhaustion of domestic
remedies as required by former Article 26 (now Article 35 § 1 of
the Convention):
“66. Under Article 26 normal recourse should be
had by an applicant to remedies which are available and sufficient to
afford redress in respect of the breaches alleged. The existence of
the remedies in question must be sufficiently certain not only in
theory but in practice, failing which they will lack the requisite
accessibility and effectiveness (see, inter alia, the Vernillo
v. France judgment of 20 February 1991, Series A no. 198, pp.
11-12, para. 27, and the Johnston and Others v. Ireland
judgment of 18 December 1986, Series A no. 112, p. 22, para. 45).
Article 26 also requires that the complaints intended
to be made subsequently at Strasbourg should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements and time-limits laid down in domestic
law and, further, that any procedural means that might prevent a
breach of the Convention should have been used (see the Cardot v.
France judgment of 19 March 1991, Series A no. 200, p. 18, para.
34).
67. However, there is, as indicated above, no obligation
to have recourse to remedies which are inadequate or ineffective. In
addition, according to the "generally recognised rules of
international law" there may be special circumstances which
absolve the applicant from the obligation to exhaust the domestic
remedies at his disposal (see the Van Oosterwijck v. Belgium
judgment of 6 November 1980, Series A no. 40, pp. 18-19, paras.
36-40). The rule is also inapplicable where an administrative
practice consisting of a repetition of acts incompatible with the
Convention and official tolerance by the State authorities has been
shown to exist, and is of such a nature as to make proceedings futile
or ineffective (see the Ireland v. the United Kingdom judgment
of 18 January 1978, Series A no. 25, p. 64, para. 159, and the report
of the Commission in the same case, Series B no. 23-I, pp. 394-97).
68. In the area of the exhaustion of domestic remedies
there is a distribution of the burden of proof. It is incumbent on
the Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success. However, once
this burden of proof has been satisfied it falls to the applicant to
establish that the remedy advanced by the Government was in fact
exhausted or was for some reason inadequate and ineffective in the
particular circumstances of the case or that there existed special
circumstances absolving him or her from the requirement (see, inter
alia, the Commission's decision on the admissibility of application
no. 788/60, Austria v. Italy, 11 January 1961, Yearbook, vol.
4, pp. 166-168; application no. 5577-5583/72, Donnelly and Others
v. the United Kingdom (first decision), 5 April 1973, Yearbook,
vol. 16, p. 264; also the judgment of 26 June 1987 of the
Inter-American Court of Human Rights in the Velásquez
Rodríguez case, Preliminary Objections, Series C no. 1,
para. 88, and that Court's Advisory Opinion of 10 August 1990 on
"Exceptions to the Exhaustion of Domestic Remedies"
(Article 46 (1), 46 (2) (a) and 46 (2) (b) of the American Convention
on Human Rights),Series A no. 11, p. 32, para. 41). One such reason
may be constituted by the national authorities remaining totally
passive in the face of serious allegations of misconduct or
infliction of harm by State agents, for example where they have
failed to undertake investigations or offer assistance. In such
circumstances it can be said that the burden of proof shifts once
again, so that it becomes incumbent on the respondent Government to
show what they have done in response to the scale and seriousness of
the matters complained of.
69. The Court would emphasise that the application of
the rule must make due allowance for the fact that it is being
applied in the context of machinery for the protection of human
rights that the Contracting Parties have agreed to set up.
Accordingly, it has recognised that Article 26 must be applied with
some degree of flexibility and without excessive formalism (see the
above-mentioned Cardot judgment, p. 18, para. 34). It has
further recognised that the rule of exhaustion is neither absolute
nor capable of being applied automatically; in reviewing whether it
has been observed it is essential to have regard to the particular
circumstances of each individual case (see the above-mentioned Van
Oosterwijck judgment, p. 18, para. 35). This means amongst other
things that it must take realistic account not only of the existence
of formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate as well as the personal circumstances of the
applicants.”
3. Remedy issues examined in previous property cases
The Court has already been called upon to examine
applications arising from the situation in Cyprus concerning the
property of Greek-Cypriot citizens who fled following events in 1974,
most notably in the Loizidou case (see Loizidou v. Turkey
(preliminary objections), 23 March 1995, Series A no. 310;
Loizidou v. Turkey, 18 December 1996, cited above; Loizidou
v. Turkey (Article 50), 29 July 1998, Reports 1998 IV)
and the inter-State case dealt with by the Grand Chamber of the Court
(Cyprus v. Turkey, §§ 162-199, cited above), in
which violations of Article 1 of Protocol No. 1 were found due to the
ongoing deprivation of the use of property and, in the latter, also a
violation of Article 8 due to the refusal to allow displaced persons
to return to their homes in the north (see also Demades v. Turkey,
no. 16219/90, 31 July 2003).
On
the issue of remedies, the Court recalls its finding in the
inter-State case that pursuant to Article 159 of the “TRNC”
Constitution the ownership rights of Greek Cypriots to their
properties in northern Cyprus were no longer recognised by the “TRNC”
authorities and that the legality of any interference was
unassailable before the “TRNC” courts. In those
circumstances no requirement to exhaust arose; and there was,
correspondingly, a breach of Article 13 in that Turkey had failed to
provide to Greek Cypriots not residing in northern Cyprus any
remedies to contest interferences with their rights under Article 8
of the Convention and Article 1 of Protocol No. 1.
Having
regard to the large number of individual applications raising
property complaints pending before the Court and the introduction of
Law 49/2003 that purported to provide applicants with redress, the
Chamber notified the parties in Xenides-Arestis v. Turkey (no.
46347/99) that this was to be a pilot case and put questions as to
the compensation commission set up under the Law and the relevance,
if any, of the Annan Plan. Meanwhile it adjourned examination of all
other cases. Following a hearing, it ruled in its decision on
admissibility that Law No. 49/2003, which provided for compensation
for immovable properties, did not satisfy the requirements of Article
35 § 1 since compensation was limited to damages for pecuniary
loss for immovable property, without provision for movable property
or non-pecuniary damages; there was no provision for the restitution
of property; the Law did not address the applicant's complaints under
Articles 8 or 14 of the Convention; the Law was vague as to its
temporal application (namely whether it had retrospective effect
concerning applications lodged before it entered into effect); and
the composition of the compensation commission gave rise to
difficulties, the Government not disputing that the majority of its
members lived in houses owned or built on property of Greek Cypriots.
It was noted that an international composition would enhance the
commission's standing and credibility (Xenides-Arestis,
decision on admissibility cited above).
In
its subsequent judgment on the merits, the Court considered that the
respondent State should introduce a remedy which secured genuinely
effective redress for the Convention violations identified in the
judgment, as well as in respect of all similar pending applications,
in accordance with the principles for the protection of rights laid
down in applicable provisions and in line with the admissibility
decision (Xenides-Arestis v. Turkey, no. 46347/99, §
40, 22 December 2005):
“39. Before examining the applicant's
individual claims for just satisfaction under Article 41 of the
Convention and in view of the circumstances of the instant case, the
Court wishes to consider what consequences may be drawn for the
respondent State from Article 46 of the Convention. It reiterates
that by virtue of Article 46 the High Contracting Parties have
undertaken to abide by the final judgments of the Court in any case
to which they are parties, execution being supervised by the
Committee of Ministers of the Council of Europe. It follows, inter
alia, that a judgment in which the Court finds a breach imposes
on the respondent State a legal obligation not just to pay those
concerned the sums awarded by way of just satisfaction under Article
41, but also to select, subject to supervision by the Committee of
Ministers, the general and/or, if appropriate, individual measures to
be adopted in their domestic legal order to put an end to the
violation found by the Court and to redress so far as possible the
effects. Subject to monitoring by the Committee of Ministers, the
respondent State remains free to choose the means by which it will
discharge its legal obligation under Article 46 of the Convention,
provided that such means are compatible with the conclusions set out
in the Court's judgment (see Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII,
and Broniowski v. Poland [GC], no. 31443/96, §
192, ECHR 2004-V).
40. The Court considers that the respondent
State must introduce a remedy which secures genuinely effective
redress for the Convention violations identified in the instant
judgment in relation to the present applicant as well as in respect
of all similar applications pending before it, in accordance with the
principles for the protection of the rights laid down in Article 8 of
the Convention and Article 1 of Protocol No. 1 and in line with its
admissibility decision of 14 March 2005. ...”
Following
this judgment, the “TRNC” authorities enacted the new
compensation law, Law 67/2005 (set out in Relevant Domestic Law
and Practice above) which entered into force on 22 December
2005. The Immovable Property Commission (hereinafter the
“IPC”), which was established under this law for the
purpose of examining applications made in respect of properties
within the scope of the aforementioned law, was composed of five to
seven members, two of whom were foreign members, Mr Hans-Christian
Krüger (former Secretary to the European Commission of Human
rights and former Deputy Secretary General of the Council of Europe)
and Mr Daniel Tarschys (former Secretary General of the Council
of Europe), and had the competence to decide on the restitution,
exchange of properties or payment of compensation. A right of appeal
lay to the “TRNC” High Administrative Court.
In
its judgment on Article 41 (Xenides-Arestis v. Turkey (just
satisfaction), no. 46347/99, § 37, 7 December 2006),
the Court stated as follows:
“37. The Court welcomes the steps
taken by the Government in an effort to provide redress for the
violations of the applicant's Convention rights as well in respect of
all similar applications pending before it. The Court notes that the
new compensation and restitution mechanism, in principle, has taken
care of the requirements of the decision of the Court on
admissibility of 14 March 2005 and the judgment on the merits of 22
December 2005. The Court points out that the parties failed to reach
an agreement on the issue of just satisfaction where, like in the
case of Broniowski v. Poland (friendly settlement and just
satisfaction) ([GC], no. 31443/96, ECHR 2005 ...), it would
have been possible for the Court to address all the relevant issues
of the effectiveness of this remedy in detail. The Court cannot
accept the Government's argument that the applicant should now be
required at this stage of the proceedings where the Court has already
decided on the merits to apply to the new Commission in order to seek
reparation for her damages (Doğan and Others v. Turkey (just
satisfaction), nos. 8803-8811/02, 8813/02 and 8815 8819/02,
§ 50, 13 July 2006).”
The
Court proceeded to issue an award of just satisfaction for pecuniary
damage taking account of the assessment of compensation made by the
IPC in these terms:
“42. Having regard to the above considerations,
and in the absence of an agreement between the parties, the Court,
making its assessment on an equitable basis and
formally in accordance with the Commission's proposal, awards the
applicant EUR 800,000 under this head.”
Both
the Government and the applicant in Xenides-Arestis (cited
above) applied to have the case referred to the Grand Chamber. On 23
May 2007, the panel of the Grand Chamber refused their requests for
referral and the judgment of 7 December 2006 became final.
Subsequently, in Eugenia
Michaelidou Developments Ltd and Michael Tymvios v. Turkey ((just
satisfaction-friendly settlement), no.
16163/90, 22 April 2008), the Court struck off a case, where
there had been a finding of a breach of Article 1 of Protocol No. 1
arising out of denial of enjoyment of property in northern Cyprus, on
the basis of a settlement in which the applicant accepted the offer
of compensation of one million dollars and exchange of property put
forward by the IPC. It was satisfied that the settlement was based on
respect for human rights as defined in the Convention or its
Protocols (Article 37 § 1 in fine of the Convention and
Rule 62 § 3 of the Rules of Court) and that it was equitable
within the meaning of Rule 75 § 4 of the Rules. The same
conclusion was reached in respect of a settlement reached in
Alexandrou v. Turkey ((just satisfaction and friendly
settlement), no. 16162/90, 28 July 2009) in
which the applicant was to receive one million five hundred thousand
pounds sterling and restitution of a plot of land.
4. Application in the present case
a. Preliminary point
The
Court observes that the applicants and intervening Government have
made submissions concerning the applicability of the pilot-judgment
procedure to cases concerning property in northern Cyprus, in
particular impugning the good faith of the Turkish Government in its
approach to providing a remedy and asserting that Turkey should not
be allowed to benefit from a pilot-judgment procedure since it had
been responsible for undue delays in the implementation of previous
judgments.
It
is certainly the case that the settlement of groups of applications,
and the speedy resolution of execution issues, is greatly assisted by
the pro-active investment of the respondent Government in the
procedures. However it should go without saying that Contracting
States are bound, in any event, to comply with the Court's judgments,
whether or not they have been engaged in a dialogue as to their
willingness to find general solutions to a widespread problem. The
Court's competence to undertake a pilot-judgment procedure in respect
of a series of repetitive or clone cases is not conditional on a
Government's conduct.
The present eight cases are the first applications not
yet declared admissible to be examined following the pilot-judgment
procedure in Xenides-Arestis v. Turkey. Although the Chamber
in Xenides-Arestis had concluded that the remedy seemed to be
adequate (see paragraph 76 above), its judgments did not include a
detailed analysis of the points of principle and interpretation of
the Convention raised by the parties. The fact that the panel of the
Grand Chamber did not accept the request for referral of the
Xenides-Arestis case (see paragraph 78 above) does not mean
that the Grand Chamber is bound in any formal sense by the Chamber's
findings. Nor is it so bound by any other precedents (see, for
example, Scoppola v. Italy (no. 2) [GC],
no. 10249/03, § 104, ECHR
2009 ...). The Court will embark on its determination of the
issues in these cases, taking full account of the submissions of the
parties and the principles laid down in its case-law as to the
interpretation of the Convention, in which context it must be
remembered above all that the Convention is designed to “guarantee
not rights that are theoretical or illusory but rights that are
practical and effective” (see, inter alia, Folgerø
and Others v. Norway [GC], no. 15472/02, § 100, ECHR
2007 ..., and Salduz v. Turkey [GC], no. 36391/02, §
51, 27 November 2008).
b. The context of these applications
The
Court observes that the arguments of all the parties reflect the
long-standing and intense political dispute between the Republic of
Cyprus and Turkey concerning the future of the island of Cyprus and
the resolution of the property question.
In
the present applications, some thirty-five years have elapsed since
the applicants lost possession of their property in northern Cyprus
in 1974. Generations have passed. The local population has not
remained static. Turkish Cypriots who inhabited the north have
migrated elsewhere; Turkish-Cypriot refugees from the south have
settled in the north; Turkish settlers from Turkey have arrived in
large numbers and established their homes. Much Greek-Cypriot
property has changed hands at least once, whether by sale, donation
or inheritance.
Thus,
the Court finds itself faced with cases burdened with a political,
historical and factual complexity flowing from a problem that should
have been resolved by all parties assuming full responsibility for
finding a solution on a political level. This reality, as well as the
passage of time and the continuing evolution of the broader political
dispute must inform the Court's interpretation and application of the
Convention which cannot, if it is to be coherent and meaningful, be
either static or blind to concrete factual circumstances.
The
Court will proceed, in light of all the above considerations, to
examine the two main branches of objections by the applicants and the
intervening Government to the procedure before the IPC: firstly,
whether the requirement to exhaust domestic remedies applies at all
to the situation of Greek-Cypriot owners of property under the
control of the “TRNC”; and then, secondly, whether or not
the respondent Government in these cases have furnished a remedy in
the IPC capable of providing effective redress.
c. The application of Article 35 § 1 in the
present cases
i. As to the argument that the applicants were not
required to exhaust any remedy which came into being after they
lodged the applications
The
Court observes that indeed the assessment of whether domestic
remedies have been exhausted is normally carried out with reference
to the date on which the application was lodged with it. However, as
it has held on many occasions, this rule is subject to exceptions,
which may be justified by the particular circumstances of each case
(see Baumann v. France, no. 33592/96,
§ 47, ECHR 2001-V, and Brusco v. Italy, (dec.),
no. 69789/01, ECHR 2001-IX). In particular, the Court has
previously departed from this general rule in cases, for example,
against Italy, Croatia and Slovakia concerning remedies against the
excessive length of proceedings (see Brusco, cited above,
Nogolica v. Croatia (dec.), no. 77784/01, ECHR
2002-VIII, Andrášik and Others v. Slovakia
(dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00,
60680/00 and 68563/01, ECHR 2002-IX) and in İçyer v.
Turkey ((dec.) no. 18888/02, ECHR 2006-I) concerning a new
compensation remedy for interference with property (see also
Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005-V,
and Tadeusz Michalak v. Poland, no. 24549/03, 1 March 2005).
As in the present cases, the remedies under consideration were
enacted to redress at a domestic level the Convention grievances of
persons whose applications pending before the Court concerned similar
issues.
Giving
weight therefore to the subsidiary character of its role, the Court
considers that the exception applies here also. Insofar as the cases
cited above took into account the effectiveness and accessibility of
supervening remedies, these matters are examined separately below.
ii. As to the argument that the “TRNC”
compensation law was not part of Turkish domestic law
The
Court considers this to be an artificial argument. Turkey has been
held responsible for the acts and omissions of the authorities within
the “TRNC” entity in numerous cases – otherwise the
Court would not have had the competence to examine complaints brought
by applicants against the respondent State concerning northern
Cyprus. To the extent that any domestic remedy is made available by
acts of “TRNC” authorities or institutions, it may be
regarded as a “domestic remedy” or “national”
remedy vis-à-vis Turkey for the purposes of Article 35
§ 1 (see Cyprus v. Turkey, cited above, §§
101-102). It should also not be overlooked that Law 67/2005 and the
IPC came into existence as the consequence of the Court holding in
Xenides-Arestis that Turkey had to introduce a remedy which
secured the effective protection of the rights laid down in Article 1
of Protocol No. 1 in relation to the applicant as well as in respect
of all similar applications pending before the Court. Accepting the
functional reality of remedies is not tantamount to holding that
Turkey wields internationally-recognised sovereignty over northern
Cyprus.
iii. As the argument that no obligation to exhaust
arose since there was an administrative practice of ongoing
violations of the applicants' rights
It is correct that in the inter-State case the European Commission of
Human Rights made an express finding of administrative practices
under Article 8 of the Convention and Article 1 of Protocol No. 1 as
regarded the acknowledged public policy not to allow the entry of
Greek Cypriots into northern Cyprus (Commission Report, §§
264-265) and the legislation and practice vis-à-vis
interference with property rights. While agreeing with the
Commission, the Court in its judgment put weight on the non-existence
of effective remedies due to the applicable legislation and to
prevailing official attitudes and policies (judgment cited above, §§
171, 184). That situation has changed. There is now legislation which
seeks to provide a mechanism of redress and which has been
interpreted so as to comply with international law, including the
Convention (see Relevant Domestic Law and Practice above, paragraphs
34-38); and the political climate has ameliorated, with borders to
the north no longer closed.
It must be open to a Government to take steps to eliminate an
administrative practice. To the extent therefore that this objection
amounts to the assertion that the remedies offered by the IPC fail to
address the violations, this is an issue which will have to be
addressed below when assessing whether the IPC provides adequate
redress.
iv. As to the argument that requiring exhaustion lent
legitimacy to an illegal occupation
This
is the argument which underlies most of the objections raised by the
applicants and the intervening Government. It is not the first time
that it has been raised before the Court; the intervening Government,
joined by the applicants, urged the Court to reconsider the approach
adopted by it in earlier cases.
In
particular, in these proceedings, the parties have differed as to the
relevance or applicability of the so-called “Namibia
Principle”: this, in brief, provides that even if the
legitimacy of the administration of a territory is not recognised by
the international community, “international law recognises the
legitimacy of certain legal arrangements and transactions in such a
situation, ... the effects of which can be ignored only to the
detriment of the inhabitants of the [t]erritory” (Advisory
Opinion of the International Court of Justice in the Namibia case
(Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) Notwithstanding Security
Council Resolution 276 (1970), [1971] International Court of
Justice Reports 16,. p. 56, § 125).
The
Court agrees that the issue before the International Court of Justice
was different, and that the situation in Namibia differs from that in
northern Cyprus, in particular since the applicants in these cases
are not living under occupation in a situation in which basic daily
reality requires recognition of certain legal relationships but are
rather seeking to vindicate, from another jurisdiction, their rights
to property under the control of the occupying power. It nonetheless
derives support from this source, and others (see Cyprus v.
Turkey, §§ 89-102, for the Grand Chamber's previous
treatment of this question) for its view that the mere fact that
there is an illegal occupation does not deprive all administrative or
putative legal or judicial acts therein of any relevance under the
Convention. As stated in the inter-State case:
“... the obligation to disregard acts of de
facto entities is far from absolute. Life goes on in the
territory concerned for its inhabitants. That life must be made
tolerable and be protected by the de facto authorities,
including their courts; and in the very interest of the inhabitants,
the acts of these authorities related thereto cannot simply be
ignored by third States or by international institutions, especially
courts, including this one.” (ibid., § 96)
Further,
the overall control exercised by Turkey over the territory of
northern Cyprus entails her responsibility for the policies and
actions of the “TRNC” and that those affected by such
policies or actions come within the “jurisdiction” of
Turkey for the purposes of Article 1 of the Convention with the
consequence that Turkey is accountable for violations of Convention
rights which take place within that territory and is bound to take
positive steps to protect those rights. It would not be consistent
with such responsibility under the Convention if the adoption by the
authorities of the “TRNC” of civil, administrative or
criminal law measures, or their application or enforcement within
that territory, were then to be denied any validity or regarded as
having no “lawful” basis in terms of the Convention (see
Foka v. Turkey, no. 28940/95, § 83, 24 June 2008, where
arrest for obstruction of the applicant Greek Cypriot by a “TRNC”
police officer was found to be lawful; Protopapa
v. Turkey, no. 16084/90, §
87, 24 February 2009 where a criminal trial before a “TRNC”
court was found to be in accordance with Article 6, there being no
ground for finding that these courts were not independent or
impartial or that they were politically-motivated).
In
the Court's view, the key consideration is to avoid a vacuum which
operates to the detriment of those who live under the occupation, or
those who, living outside, may claim to have been victims of
infringements of their rights. Pending resolution of the
international dimensions of the situation, the Court considers it of
paramount importance that individuals continue to receive protection
of their rights on the ground on a daily basis. The right of
individual petition under the Convention is no substitute for a
functioning judicial system and framework for the enforcement of
criminal and civil law. Even if the applicants are not living as such
under the control of the “TRNC”, the Court considers
that, if there is an effective remedy available for their complaints
provided under the auspices of the respondent Government, the rule of
exhaustion applies under Article 35 § 1 of the Convention. As
has been consistently emphasised, this conclusion does not in
any way put in doubt 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 (Foka, cited above, §
84). The Court maintains its opinion that allowing the respondent
State to correct wrongs imputable to it does not amount to an
indirect legitimisation of a regime unlawful under international law.
The
applicants in these cases, joined by the intervening Government,
nonetheless argued that the principle of exhaustion of domestic
remedies could not be applied to them as it could not be regarded as
to their benefit to require them to exhaust remedies, referring inter
alia to the time, effort and humiliation that this would involve
after years of continuing and flagrant violations. The Court cannot
subscribe to the position that it is somehow better for individuals
to bring their cases directly before it than to make use of remedies
available locally; this runs counter to the basic principle of
exhaustion of domestic remedies. An appropriate domestic body, with
access to the properties, registries and records, is clearly the more
appropriate forum for deciding on complex matters of property
ownership and valuation and assessing financial compensation.
The
Court is therefore not persuaded that the acknowledgement of the
existence of a domestic remedy runs counter to the interests of those
claiming to be victims of violations. It acknowledges the strength of
feeling expressed by some of the applicants. However, the argument
that it would be galling to have recourse to authorities in northern
Cyprus cannot be given decisive weight - against the background of
conflict and hostility, similar argument might be raised in respect
of any official body or authority on the Turkish mainland, or indeed
by any victim of a violation who is faced with the prospect of asking
for redress from a State which has been responsible for the injury
suffered. The fact that applicants live outside the occupied area
furnishes no reason in principle why they should not be expected to
apply to a “TRNC” body where it can be demonstrated that
a remedy is both practicable and normally functioning (e.g. Cyprus
v. Turkey, nos. 6780/74 and 6950/75, Commission decision of 26
May 1975, D.R. 2, p. 125, at pp. 137-138, § 14; Cyprus
v. Turkey, no. 8007/77, Commission decision of 10 July 1978, D.R.
13, p. 85, at p. 152, § 34). Borders, factual or legal, are not
an obstacle per se to the exhaustion of domestic remedies; as
a general rule applicants living outside the jurisdiction of a
Contracting State are not exempted from exhausting domestic remedies
within that State, practical inconveniences or understandable
personal reluctance notwithstanding.
v. As to the argument that domestic remedies do not
have to be exhausted where there is no relevant connection between
the injured persons and the State responsible
The
Court notes that the intervening Government relied on a
territorial-restriction argument to the effect that Greek-Cypriot
property owners who had not voluntarily submitted to the jurisdiction
of Turkey could not be required to use Turkish remedies in respect of
acts which were in violation of their rights outside Turkey's lawful
jurisdiction. Otherwise, it was submitted, the aggressor would be
treated as if it had the power to abrogate private rights and create
new legal procedures; it was thus contrary to principle to insist
that victims of an illegal armed invasion must first exhaust
procedures imposed on them by the invader.
This
argument seeks to draw its force from the international law position
already examined above that institutions and procedures imposed by
force by an occupying power cannot be treated as if they were
established by the lawful Government of the State. However, there is
no direct, or automatic correlation of the issue of recognition of
the “TRNC” and its purported assumption of sovereignty
over northern Cyprus on an international plane and the application of
Article 35 § 1 of the Convention.
The
Court recalls that applicants have not infrequently been required to
exhaust domestic remedies even where they did not choose voluntarily
to place themselves under the jurisdiction of the respondent State
(Pad and Others v. Turkey (dec.), no. 60617/00, 28 June 2007,
concerning Iranian villagers shot in the border area by Turkish
security forces and Al-Sadoon and Mufdhi v. United Kingdom,
no. 61498/08, decision of admissibility of 30 June 2009, concerning
Iraqis detained by UK security forces in Basrah). Under the
Convention system, the principle of subsidiarity is of paramount
importance to ensuring the protection of rights at domestic level;
where effective remedies are available, an applicant is required to
make use of them before invoking the Court's international
supervision. Contracting States are bound by the stringent
requirements of the rule of law enshrined in the provisions of the
Convention precisely to offer mechanisms of accountability and
redress regarding the acts of their own security forces or other
authorities, irrespective of the identity or origin of the alleged
victim.
The Court therefore rejects this argument.
vi. Conclusion
For
the purposes of Article 35 § 1 of the Convention, remedies
available in the “TRNC”, in particular, the IPC
procedure, may be regarded as “domestic remedies” of the
respondent State. No ground for exemption of the application of
Article 35 § 1 of the Convention has been established. The Court
will now turn to consider the effectiveness of Law 67/2005, and the
IPC in particular.
d. The existence of practical and effective remedies
The
Court notes, first of all, that the IPC has been functioning since
March 2006 and has concluded 85 applications, in which significant
sums of money have been paid in compensation, restitution of property
has been made to four applicants and exchange of property effected in
several other cases (see paragraph 40 above). There are currently
over 300 other claims pending examination by the IPC.
The
applicants, supported by the intervening Government, raise strenuous
arguments, impugning the lack of effectiveness of the remedy before
the IPC on numerous grounds, including the inadequate and flawed
nature of the redress, the lack of independence and impartiality of
the IPC, the inadequacy of the compensation and the lack of
accessibility of the procedure. The Court will deal with each of
these points below.
i. adequacy of the redress
The applicants and intervening Government contested the genuineness
of the mechanism and labelled it as a sham or a smokescreen, arguing
that rather than seeking to provide property owners with effective
redress it aims to legitimise the illegal seizure of their property.
This was demonstrated, they submitted, by the absence of any
provision in the IPC procedure acknowledging the breach of rights and
the fact that the whole mechanism was based on Article 159 of the
“TRNC” Constitution which purported, in a flagrantly
discriminatory manner reminiscent of a form of ethnic cleansing, to
expropriate the property of Greek Cypriots, and which still had not
been repealed. Further, they pointed to the low percentage of
property which was being restored to their owners and argued that
restitution had to be the primary remedy, without allowing the IPC an
untransparent and unfettered discretion in that regard.
The
Court recalls that in Loizidou, noting that the international
community did not regard the "TRNC" as a State under
international law and that the Republic of Cyprus had remained the
sole legitimate Government of Cyprus, it held that it could not
attribute legal validity for the purposes of the Convention to such
provisions as Article 159 which purported to deprive Greek Cypriots
of their ownership to property. While it is true that Article 159 has
not been repealed, it is nonetheless the case that the international
law position and the findings of this Court have been acknowledged by
the internal “TRNC” authorities, in particular the “TRNC”
Constitutional Court which insisted on the interpretation of the said
legislation as to permit Greek-Cypriot owners to have possession
restored and compensation paid to them (see paragraphs 38-39 above).
It can hardly be expected, for evident practical reasons, that the
“TRNC” authorities themselves proceed to pronounce the
legal and administrative system in the occupied areas to be null and
void in order to satisfy the points of principle raised by the
applicants and intervening Government.
Moreover,
the Court notes that the Turkish Government no longer contested their
responsibility under the Convention for the areas under the control
of the “TRNC” and that they have, in substance,
acknowledged the rights of Greek-Cypriot owners to remedies for
breaches of their rights under Article 1 of Protocol No. 1. This
acknowledgment underlies the provision of the IPC mechanism which
sought to apply the findings of the Court in the earlier cases.
In
any event, the specific recognition of a breach of rights by the
authorities is not generally a requirement under Article 35 § 1
of the Convention which is concerned with the availability of
adequate redress; such acknowledgement is rather a requirement for a
finding that an applicant has ceased to be a victim of a violation
for the purposes of standing to bring an application under Article 34
of the Convention (see Eckle v. Germany, 15 July 1982, §
66, Series A no. 51) which is not an issue in these proceedings. In
the particular circumstances of these cases the Court does not find
any basis to conclude that the adequacy of the remedy is affected by
lack of any formal indication of unlawfulness or breach of rights
(see, mutatis mutandis, the provision of compensation in the
Bug River cases in, amongst others, Wolkenberg and Others v.
Poland, (dec.), no. 50003/99, ECHR 2007-XIV; the provision
of compensation for exclusion from homes and villages in Içyer,
cited above).
Insofar
as criticism is made of an allegedly overly-restrictive approach to
restitution of possession of property to their Greek-Cypriot owners,
the Court recalls that, in Loizidou, it had rejected the
validity of Article 159 of the “TRNC” Constitution in the
context of the Turkish Government reliance on that provision as
showing that the property had been expropriated in an instantaneous
act prior to the temporal competence of the Court (cited above, §
44). As the “TRNC” regime was not regarded as being
capable of depriving the property owners of title, only of
possession, there was accordingly a continuing situation of breach
due to the ongoing barring of access to and enjoyment of their
property by Greek-Cypriot owners which was within the Court's
temporal jurisdiction. Thus, in all the cases that followed, it may
be noted that Greek-Cypriot owners claimed only pecuniary damages for
loss of use of their properties, not compensation for the loss of the
properties themselves of which they continued to be regarded as the
legal owners.
This
has led to the situation that individuals claiming to own property in
the north may, in theory, come to the Court periodically and
indefinitely to claim loss of rents until a political solution to the
Cyprus problem is reached. At the present point, many decades after
the loss of possession by the then owners, property has in many cases
changed hands, by gift, succession or otherwise; those claiming title
may have never seen, or ever used the property in question. The issue
arises to what extent the notion of legal title, and the expectation
of enjoying the full benefits of that title, is realistic in
practice. The losses thus claimed become increasingly speculative and
hypothetical. There has, it may be recalled, always been a strong
legal and factual link between ownership and possession (see, for
example, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v.
the United Kingdom [GC], no. 44302/02, ECHR 2007 X
concerning extinction of title in adverse possession cases) and it
must be recognised that with the passage of time the holding of a
title may be emptied of any practical consequences.
This
is not to say that the applicants in these cases have lost their
ownership in any formal sense; the Court would eschew any notion that
military occupation should be regarded as a form of adverse
possession by which title can be legally transferred to the invading
power. Yet it would be unrealistic to expect that as a result of
these cases the Court should, or could, directly order the Turkish
Government to ensure that these applicants obtain access to, and full
possession of, their properties, irrespective of who is now living
there or whether the property is allegedly in a militarily sensitive
zone or used for vital public purposes.
The
Court can only conclude that the attenuation over time of the link
between the holding of title and the possession and use of the
property in question must have consequences on the nature of the
redress that can be regarded as fulfilling the requirements of
Article 35 § 1 of the Convention.
The
Court's case-law indicates that if the nature of the breach allows
restitutio in integrum, it is for the respondent State to
implement it. However, if it is not possible to restore the position,
the Court, as a matter of constant practice, has imposed the
alternative requirement on the Contracting State to pay compensation
for the value of the property. This is because the Contracting
Parties to a case are in principle free to choose the means whereby
they will comply with a judgment in which the Court has found a
breach. This discretion as to the manner of execution of a judgment
reflects the freedom of choice attaching to the primary obligation of
the Contracting States under Article 1 of the Convention to secure
the rights and freedoms guaranteed under the Convention (see amongst
many authorities, Papamichalopoulos and Others v. Greece
(Article 50), 31 October 1995, § 34, Series A no.
330-B). The Court notes that it has consistently applied the above
approach even to cases of manifestly unlawful and flagrant
expropriations of property (see, for example, Papamichalopoulos,
cited above, Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, ECHR 2000 X); it does not perceive that any difference
of principle arises where the illegality is on an international
level. While it goes without saying that Turkey is regarded by the
international community as being in illegal occupation of the
northern part of Cyprus, this does not mean that when dealing with
individual applications concerning interference with property, the
Court must apply the Convention any differently.
The applicants argued that this would allow Turkey to
benefit from her illegality. The Court would answer that, from a
Convention perspective, property is a material commodity which can be
valued and compensated for in monetary terms. If compensation is paid
in accordance with the Court's case-law, there is in general no
unfair balance between the parties. Similarly, it considers that an
exchange of property may be regarded as an acceptable form of
redress. It is correct, as the applicants and intervening Government
asserted, that the Convention should be interpreted as far as
possible in harmony with other principles of international law of
which it forms part (Al-Adsani v. the United Kingdom, [GC],
no. 35763/97, § 60, ECHR 2001-XI); however, the Court must also
have regard to its special character as a human rights treaty
(amongst many authorities, Banković and Others v. Belgium and
16 Other Contracting States (dec.), [GC], no.
52207/99, § 57, ECHR 2001 XII). The Convention
system deals, overwhelmingly, with individual applications. The
present applications are cases about interferences with individual
property rights, and the availability of redress therefor –
they cannot be used as a vehicle for the vindication of sovereign
rights or findings of breaches of international law between
Contracting States.
The
Court must also remark that some thirty-five years after the
applicants, or their predecessors in title, left their property, it
would risk being arbitrary and injudicious for it to attempt to
impose an obligation on the respondent State to effect restitution in
all cases, or even in all cases save those in which there is material
impossibility, a suggested condition put forward by the applicants
and intervening Government which discounts all legal and practical
difficulties barring the permanent loss or destruction of the
property. It cannot agree that the respondent State should be
prohibited from taking into account other considerations, in
particular the position of third parties. It cannot be within this
Court's task in interpreting and applying the provisions of the
Convention to impose an unconditional obligation on a Government to
embark on the forcible eviction and rehousing of potentially large
numbers of men, women and children even with the aim of vindicating
the rights of victims of violations of the Convention.
It
is evident from the Court's case-law that while restitution laws
implemented to mitigate the consequences of mass infringements of
property rights caused, for example, by communist regimes, may have
been found to pursue a legitimate aim, the Court has stated that it
is still necessary to ensure that the redress applied to those old
injuries does not create disproportionate new wrongs. To that end,
the legislation should make it possible to take into account the
particular circumstances of each case (see, for example, Pincová
and Pinc v. the Czech Republic, no. 36548/97, § 58,
ECHR 2002 VIII). Thus, there is no precedent in the Court's
case-law to support the proposition that a Contracting State must
pursue a blanket policy of restoring property to owners without
taking into account the current use or occupation of the property in
question.
Thus,
the Court maintains its view that it must leave the choice of
implementation of redress for breaches of property rights to
Contracting States, who are in the best position to assess the
practicalities, priorities and conflicting interests on a domestic
level even in a situation such as that pertaining in the northern
part of Cyprus. No problem therefore arises as regards the impugned
discretionary nature of the restitutionary power under the Law
67/2005.
Insofar
as the applicants protested that only a small proportion of the
property under occupation would in practice be eligible for
restitution under the new mechanism, the Court does not consider that
this, to the extent that it can be considered as an accurate
assertion, undermines the effectiveness of the new scheme. In
Xenides-Arestis (decision on admissibility, cited above), it
had pointed out that the lack of any provision for restitution was a
defect. It is satisfied, given that restitution of property has
already occurred, that the amended law has made good this
shortcoming.
ii. independence and impartiality
The
Court notes that the IPC is made up of five to seven members, two of
whom are independent international members and that similar rules
apply as to senior members of the judiciary in the "TRNC"
vis-à-vis appointment and termination, and conditions
of employment. Persons who occupy Greek-Cypriot property are
expressly excluded. While the applicants and intervening Government
asserted that no-one in the north could claim to be unaffected by the
widespread problem, this general allegation is insufficient to cast
doubt on the composition. Nor is it persuaded that the illegal nature
of the regime under international law and the ongoing presence of
Turkish military personnel or the appointment of members of the
Commission by the “TRNC” President removes any objective
impartiality or independence from the IPC in carrying out the
functions imposed upon it under Law 67/2005. No specific, and
substantiated, grounds concerning any lack of subjective impartiality
of members of the IPC have been put forward.
iii. adequacy of the compensation
The
applicants and intervening Government submitted that the amounts
awarded by the IPC were unreasonably low compared with previous Court
awards of just satisfaction. The Court would however note that in
Xenides-Arestis (cited above) it awarded 800,000 euros for
pecuniary damage which was the equivalent of the figure of 466,289
Cypriot pounds (CYP) put forward by the IPC rather than the CYP
716,101 claimed by the applicant. It also notes the settlement in the
case of Eugenia Michaelidou Developments Ltd
and Michael Tymvios v. Turkey (just
satisfaction-friendly settlement) (cited above) which was based on
the IPC's assessment. If, in the Demades
case (cited above), the Court awarded the sum claimed by the
applicant in preference to that put forward by the Government which
had sought assistance from the IPC, this was in a situation where the
Government had not provided sufficient materials to substantiate the
valuation which they had put forward.
The
Court notes that the intervening Government have provided reports by
their Land and Surveys Department which asserts that only 2%-6% of
true entitlement has been allocated to claimants before the IPC so
far. It would appear however that these figures are based on
calculations including economic loss of use, although it is not
evident that the claimants concerned in fact put in claims for
economic loss, and also includes high rates of interest, which have
not been previously accepted in the Court's just satisfaction awards.
Furthermore, the sums put forward, for example, in respect of fields
without any residential or other buildings also appear
disproportionately high, given the speculative nature of the
assumptions being made as to their profitability. Nor is it apparent
that any of the claimants who are purportedly dissatisfied with the
awards have made appeal to the High Administrative Court as is open
to them.
123. The
Court is not therefore convinced that it can be said that the sums of
compensation awarded under Law 67/2005 will automatically fall short
of what can be regarded as reasonable compensation, or, applying the
standard of comparison in length of proceedings cases, as being
"manifestly unreasonable" (see Cocchiarella
v. Italy
[GC], no. 64886/01, § 140, ECHR 2006 V,
Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 214, 272, ECHR 2006-V).
iv. the accessibility and efficiency of the remedy
124. The
applicants have referred in this context to the burden of proof which
is placed on claimants by Law 67/2005. The Court observes that
individuals claiming immovable or movable property are required to
prove their ownership or title beyond reasonable doubt and to provide
documentary proof for movable property. This is the same burden of
proof as is often relied on by the Court, particularly in the context
of Articles 2 and 3, but it may be noted that the Court applies an
autonomous approach not assimilable to that in domestic criminal
cases (see Nachova and Others v. Bulgaria [GC], nos.
43577/98 and 43579/98, § 147, ECHR 2005 VII).
Similarly the formulation of evidentiary standards in domestic law
cannot be taken in isolation from their application in practice and
it is not apparent from the materials before the Court that this
element has led to a significant number of claims being rejected.
Claims under the Convention must also be substantiated by evidentiary
means. Any difficulties faced by the applicants in putting forward
their claims before the IPC would equally apply in applications to
this Court. Thus the requirement that claimants provide title deeds
or proof of ownership, even if onerous in some cases, would appear a
necessary and unavoidable precondition to making an application.
125. Nor
does the Court perceive any failing in the Law to make provision for
the payment of compensation, an obligation for budgetary inclusion
being imposed on the relevant body (see section 18 of Law 67/2005 at
paragraph 36 above). Insofar as the applicants asserted that the
mechanism would take an unreasonable length of time, there is no
material before the Court which would substantiate this claim. The
fact that there are several hundred pending claims at the moment
cannot be relied on to prove that any particular claims have not been
handled with due expedition. It further notes the guarantees given to
claimants and representatives concerning entry and exit to the
northern area.
126. Insofar
as complaint was made that claimants were, on occasion, required to
attend numerous sessions of the IPC, the Court does not find that
this has been shown to render the procedure unduly onerous or
inaccessible. Similarly, while it is asserted that claimants were not
always informed by the IPC of the possibility of obtaining legal
representation and their own valuations or of what claims they could
put forward, there is no general obligation in the civil context for
a tribunal to ensure that any party presents his or her case in the
most effective way. It is apparent that some claimants did obtain
legal representation and their own expert evidence; there was nothing
to prevent the others from doing so. As regards the complaint that
the IPC worked only in Turkish and English, the Court would note that
the latter is in common usage in Cyprus and that interpreters are
made available during the IPC proceedings. It perceives no obstacle
in the way of the claimants obtaining translations themselves of any
documents or forms nor any requirement that legal aid should be
available for the payment of legal fees. As regards the allegation
that decisions were unreasoned and lacking in transparency, there are
very few examples from which to draw any general conclusions as
hardly any claims have in fact reached the stage of a decision on the
merits from the IPC, most resulting in a settlement at an earlier
stage. The Court can place limited weight on the assertions made of
undue pressure, bullying and even corrupt practice, which if true
might be cause for worry and threaten to undermine the practical
availability of the remedy, but which have not been tested in
adversarial conditions. Even if claimants may feel under pressure to
settle cases, it is not evident to the Court that claimants are
unable, if they are so determined, to take their claims to a decision
by the IPC. In any event, as already noted above, appeal lay to the
“TRNC” High Administrative Court if any claimant
considered that there had been material unfairness or procedural
irregularity; none have chosen so far to exercise this avenue of
redress. The scope of the High Court's review, and its ability to
mitigate any errors or failings in the procedures before the IPC have
not been put to the test.
v. Conclusion
The
Court finds that Law 67/2005 provides an accessible and effective
framework of redress in respect of complaints about interference with
the property owned by Greek Cypriots. The applicant property owners
in the present cases have not made use of this mechanism and their
complaints under Article 1 of Protocol No. 1 to the Convention must
therefore be rejected for non-exhaustion of domestic remedies. It is
satisfied that Law 67/2005 makes realistic provision for redress in
the current situation of occupation that is beyond this Court's
competence to resolve.
Lastly,
it would stress that this decision is not be interpreted as requiring
that applicants make use of the IPC. They may choose not to do so and
await a political solution. If, however at this point in time, any
applicant wishes to invoke his or her rights under the Convention,
the admissibility of those claims will be decided in line with the
principles and approach above. The Court's ultimate supervisory
jurisdiction remains in respect of any complaints lodged by
applicants who, in conformity with the principle of subsidiarity,
have exhausted available avenues of redress..
The
Court concludes that this part of the application must therefore be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
II. CONCERNING ARTICLE 8 OF THE CONVENTION
A. The submissions before the Court
As
concerned the applicants' complaints of an ongoing interference with
their right to home, the Government asserted, in addition to their
submissions above as to the availability of an effective remedy, that
the precise scope of the remedy before the IPC and “TRNC”
High Administrative Court as regarded non-pecuniary damages for loss
of home had not been developed as the issue had yet to arise for
decision. They would treat the matter with regard to the provisions
of the Convention. Also, Article 8 violations could be brought before
the District Courts which applied the Convention directly.
The
applicants submitted, in addition to their arguments raised above,
that non-owners of property were excluded from applying for
compensation to the IPC and thus no remedies were available. Further,
they considered that the right to respect for home did not presuppose
ownership, pointing to cases in which applicants had been successful
as tenants. There was no doubt that the second applicant in
application no. 13751/02, Ms Lordou Anastasiadou, who had lived
in the apartment owned by her father, until the age of two and which
she was entitled to partly inherit on his death, retained continuous
and strong links with the apartment which throughout her life has
been held out to be the lost and irreplaceable family home of her
childhood.
The
intervening Government agreed that a victim with no ownership rights
was excluded from the IPC's jurisdiction and no remedy was available.
B. The Court's assessment
1. Concerning the applicant property owners
The
Court notes that claimants who own property may make claims to the
IPC in respect of non-pecuniary damages, which provision in Law
67/2005 is broad enough to encompass aspects of any loss of enjoyment
of home (see section 8(4)E set out in paragraph 37 above). It
accordingly finds that these applicants' complaints under Article 8
also fail for non-exhaustion of domestic remedies as they have not
brought such claims before the IPC.
This
part of the application must therefore be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
2. Concerning the second applicant in application no. 13751/02
The Court is not persuaded that the second applicant in this case,
who does not make any property claim, had any realistic prospect of
applying either to the IPC or “TRNC” courts in respect of
her complaint that she has been denied access to her home in the
north. On its face Law 67/2005 restricts claims to those who own
property and no precedent has been provided indicating on what basis
the IPC or the “TRNC” courts could, or would, provide
redress. The Court will therefore examine the substance of this
applicant's complaint. It recalls that the applicant lived in the
home owned by her father until the age of two and that she claimed
that this property was still regarded strongly as the family home
some thirty-five years later.
The
notion of “home” has been interpreted dynamically by this
Court; however care must be taken to respect the intentions of the
authors of the Convention as well as common sense (see Khamidov v.
Russia, no. 72118/01, § 131, ECHR 2007 XII
(extracts). Thus, it is not enough for an applicant to claim that a
particular place or property is a “home”; he or she must
show that they enjoy concrete and persisting links with the property
concerned (see e.g. Gillow v. the United Kingdom, 24
November 1986, § 46, Series A no. 109). The nature of the
ongoing or recent occupation of a particular property is usually the
most significant element in the determination of the existence of a
“home” in cases before the Court. However, where “home”
is claimed in respect of property in which there has never been any,
or hardly any, occupation by the applicant or where there has been no
occupation for some considerable time, it may be that the links to
that property are so attenuated as to cease to raise any, or any
separate, issue under Article 8 (see, for example, Andreou Papi v.
Turkey, no. 16094/90, § 54, 22 September 2009). Furthermore,
while an applicant does not necessarily have to be the owner of the
“home” for the purposes of Article 8, it may nonetheless
be relevant in such cases of claims to “homes” from the
past that he or she can make no claim to any legal rights of
occupation or that such time has elapsed that there can be no
realistic expectation of taking up, or resuming, occupation in the
absence of such rights (see, mutatis mutandis, Vrahimi v.
Turkey, no. 16078/90, § 60, 22 September 2009, where
the applicant had never had any “possession” in the
property which had been owned by a company). Nor can the term “home”
be interpreted as synonymous with the notion of “family roots”,
which is a vague and emotive concept (e.g. Loizidou,
judgment on the merits cited above, § 66).
Turning
to the facts of this case, the Court recalls that the second
applicant was very young at the time she ceased to live in the then
family home in 1974, which was some thirteen years before the Court's
temporal jurisdiction commenced and some twenty-eight years before
the date of introduction of her application. For almost her entire
life, the applicant has been living with her family elsewhere. The
fact that she might inherit a share in the title of that property in
the future is a hypothetical and speculative element, not a concrete
tie in existence at this moment in time. The Court accordingly does
not find that the facts of the case are such as to disclose any
present interference with the applicant's right to respect for her
home.
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. CONCERNING THE REMAINING COMPLAINTS RAISED BY THE
APPLICANTS UNDER ARTICLES 13, 14 AND 18 OF THE CONVENTION
The
respondent Government submitted that the question of a separate
Article 14 remedy did not arise, as in previous judgments the Court
had not considered a separate examination of these complaints
necessary. As to Article 13, they referred to their submissions as to
the effectiveness of the IPC mechanism.
The
applicants pointed out that Law 67/2005 did not address the Article
14 complaints. The general policy to exclude Greek Cypriots from
their homes and properties was well-established. They had clearly
been subject to a difference in treatment that was not based on any
objective and reasonable justification. As concerned Article 13, they
reiterated their submissions as to the lack of effectiveness of the
purported IPC remedy.
The
intervening Government argued that there was blatant discrimination
contrary to Article 14 of the Convention, and that there was no
effective remedy as required by Article 13 of the Convention.
The
Court would observe that it has so far not found any separate breach
arising under Article 14 of the Convention in previous cases
concerning property in northern Cyprus (see, amongst others, Cyprus
v. Turkey, cited above, § 199, Xenides-Arestis,
judgment on the merits cited above, § 36, Ioannou v. Turkey,
no. 18364/91, 27 January 2009, § 43).
Further,
having regard to the facts of the cases, the submissions of the
parties and its findings under Article 1 of Protocol No. 1 and
Article 8 of the Convention, the Court considers that no further
issue arises for examination concerning the remaining complaints made
by the applicants.
For these reasons, the Court
Decides unanimously to join the applications;
Declares by a majority the applications inadmissible.
Erik Fribergh Jean-Paul Costa
Registrar President
