THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15973/90 by Constantinos LORDOS and 12 Others against Turkey

The European Court of Human Rights (Third Section) , sitting on 27 June 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr L. Loucaides, Mrs F. Tulkens, Sir Nicolas Bratza, Mr K. Traja, judges , Mr F. Gölcüklü, ad hoc judge, and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 December 1989 and registered on 10 January 1990,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 29 August 1994,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are all citizens of the Republic of Cyprus. They are Lordos Constantinos born on the 1 March 1940 in Famagusta , Christofides Kikis born on the 18 April 1941 in Famagusta , Spiridonos Zacharias born on the 30 March 1938 in Rizokarpaso , Ioannou Stavros born on the 20 August 1952 in Famagusta , Ionidou Areti born on the 19 January 1946 in Famagusta , Evangelides Michalis born on the 28 December 1953 in Famagusta , Loizides Loizos born on the 19 August 1925 in Koma tou Yialou , Hadjimanolis Christos born on the 23 July 1940 in Tochni , Sergis Panayiotis born on the 20 February 1929 in Trikomo , Misirlis Georgios born on the 12 February 1952 in Famagusta , Rouvas Georgios born on the 12 September 1926 in Kalopsida , Famagusta , Antoniadou Eleni born on the 9 October 1948 in Nicosia and Mandrides Stelios born on 7 September 1948 in Kano , Nigeria. They all reside against their will in various parts of the non-occupied part of the Republic of Cyprus and are either self-employed or employed by the Cyprus Republic. In the proceedings before the Court they are represented by Mr Adamos Adamides , a lawyer practising in Limassol .

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants and the group of individuals whom they represent were permanent residents of and have their homes as well as other immovable properties in Famagusta , in northern Cyprus, which they were forced to leave as the invading Turkish forces were advancing in July 1974. The applicants and their families fled from their homes leaving behind all the contents, including precious personal belongings.

In all cases the applicants have Certificates of Registration issued either before or after the Turkish invasion, with the sole exception of a building site in Famagusta , Trikomo , belonging to P. Sergis , who is applicant No.7 and this property is numbered as No. 2 on his list of immovable property in Annex 11 to the applicants’ observations.

It should be noted that the respondent Government have not challenged any of the titles regarding the immovable property.

The applicants left behind in Famagusta the following real property, of which they claim to be the owners:

1. Constantinos G. LORDOS

2. Kikis L. CHRISTOFIDES

3. Zacharias SPYRIDONOS

4. Stavros IOANNOU

5. Areti G. IONIDES

6. Michalis EVANGELIDES

7. Loizos . D. LOIZIDES

8. Christos HADJIMANOLIS

9. Panayiotis SERGIS

10. Georgios MISIRLIS

11. Georgios ROUVAS

12. Eleni ANDONIADOU

13. Stelios MANDRIDES

Since 1974 the applicants have not been able to return to their homes and have been continuously prevented from exercising their property rights, including the enjoyment of their property.

COMPLAINTS

The applicants complain under Articles 1, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 that their rights to respect for their home and to the peaceful enjoyment of their possessions are violated. They further submit that they are subjected to discrimination in the enjoyment of the above-mentioned rights. (They initially complained of a violation of Article 2 of Protocol No. 4 to the Convention, but this was declared inadmissible by the Commission as Turkey had not ratified that Protocol.)

They allege that since the invasion of the northern part of Cyprus in July and August 1974, on various occasions Turkey has prevented, and still today prevents them, because of their religion and national origin, to return to their homes and properties, to move freely to northern Cyprus and to exercise their rights over their homes and the peaceful enjoyment of their possessions, in breach of the aforementioned Articles.

THE LAW

The applicants complain that their rights to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 and to respect for their homes under Article 8 of the Convention are violated. They also complain that they are subjected to discrimination in the enjoyment of the above-mentioned rights, contrary to Article 14 of the Convention, and that they have no effective remedy, contrary to Article 13 of the Convention, as there is no recognised legal forum where they may seek redress for the violations of which they complain.

Article 1 of Protocol No. 1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in this 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.”

Article 13 of the Convention provides as follows:

“ Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submit that the applicants have no title to the properties in question in view of the constitutional and legal provisions applying in the Turkish Republic of Northern Cyprus (TRNC) and/or in view of the administrative acts of expropriation under the laws of the TRNC. As a result of the entry into force of the provisions of Article 159 of the TRNC Constitution, these properties are no longer registered in the names of the applicants.

The Government recall that in view of the temporal restriction in the Turkish Declaration recognising the jurisdiction of the Court, the applicants’ allegations of a violation of the Convention prior to 22 January 1990 should be declared inadmissible. Furthermore, there would be no causal link between the Turkish intervention in 1974 and the alleged violation after the recognition of the compulsory jurisdiction of the Court in 1990, in view of the political developments which took place after the Turkish intervention.

In the light of the above, the Government submit that the application is incompatible either ratione materiae or ratione temporis .

Moreover, the Government contend that the application is incompatible ratione personae . Turkey alleges that it has no jurisdiction or control over the northern part of Cyprus as regards the applicants’ complaints. The existence of “jurisdiction” under Article 1 of the Convention does not create an irrebuttable presumption of control and responsibility, as is indicated by the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (D.R. 86-A, p.4). The applicants’ properties have been expropriated by the administrative acts of the authorities of Northern Cyprus under the laws and constitutional provisions applicable in the Turkish Federated State of Cyprus (TFSC) and its successor, the TRNC, an independent State. The acts complained of are not imputable to Turkey. In this connection the respondent Government refer in detail to the history of Cyprus since 1960, emphasising in particular the following:

- the bi-communal character of the 1960 Constitution and the obligation of Cyprus, under international treaty obligations, guaranteed by the signatories of the 1960 Treaty of Guarantee to maintain her independence, territorial integrity and the fundamental principles of the Constitution;

- the alleged responsibility of the Greek Cypriot side for the breakdown of the 1960 constitutional arrangements in 1963 and the subsequent changing of basic principles of the Constitution;

- the allegedly intolerable situation of the enclaved Turkish Cypriots in the period between 1964 and 1974, which caused them to set up their own administration as of December 1967;

- the fact that the Turkish intervention in July 1974 was preceded by a coup d'état of Greek officers of the National Guard who pursued the aim of the unification of Cyprus with Greece ( Enosis );

- the contention that the Turkish military operation in 1974 was carried out in conformity with Article IV of the Treaty of Guarantee to protect the rights of Turkish Cypriots;

- the proclamation of the TFSC on 13 February 1975 and its Constitution which contained a declared intention that the TFSC would one day form part of a federation of the whole of Cyprus;

- the contention that the subsequent voluntary relocation of both the Turkish Cypriot and the Greek Cypriot communities in separate parts of the island was the result of agreements achieved in inter-communal talks held in Vienna in July/August 1975, these agreements being fully implemented under UN auspices, UN troops moving into the newly established buffer zone;

- the agreement achieved in 1977 and 1979 between the Turkish Cypriot and Greek Cypriot leaders for seeking a federal solution on the basis of a bi-communal and bi-zonal federation, a concept which, it is contended, is still valid as a basic guideline for the inter-communal talks;

- the stance of the Council of Europe and of its Parliamentary Assembly which refused to admit a unilateral Cypriot delegation from 1964 to 1983 and the fact that the bi-communal character of Cyprus was also reflected in the composition of the European Commission of Human Rights and the European Court of Human Rights;

- the establishment of the TRNC as an independent State on 15 November 1983 was declared by the legitimate representative body of the Turkish Cypriots in exercise of their right to self-determination, and that this did not constitute secession, as the bi-communal Republic of Cyprus had ceased to function due to the actions of the Greek Cypriot side since 1963;

- the subsequent development of the TRNC institutions was legitimate and in line with democratic principles and consolidated the statehood of the TRNC according to criteria accepted in international law;

- the contention that there exists in North Cyprus an administration exercising effective and exclusive executive, legislative and judicial authority, which has been acknowledged by the Commission in its report in the case of Chrysostomos and Papachrysostomou v. Turkey;

- the opinion that, despite the fact that it has not been recognised de jure by any other State than Turkey, the TRNC exists de facto as an independent State exercising all branches of State power on its territory. (In this connection the respondent Government refer to several decisions of English courts recognising that there was “an effective and autonomous administration in the North” and to the fact that Turkey, having recognised the TRNC de jure , does not claim for herself the exercise of power in that area).

In the Government’s view, the Loizidou v. Turkey judgement of the Court (judgement of 18 December 1996, Reports of Judgements and Decisions 1996-VI, p. 2216) cannot be considered as a precedent. The Court relied exclusively on Article 159 of the TRNC Constitution and had no knowledge of all the other facts entailing loss of the applicant’s property, such as the other intervening acts of the TRNC. Contrary to what the Court asserted, the Government never acknowledged in Loizidou v. Turkey that the applicant’s loss of control of her property stemmed from the occupation of the northern part of Cyprus and the establishment of the TRNC. As a matter of fact, the applicant’s loss of control and her inability to have access to her property depended on a number of factors, such as the cease-fire arrangements, the agreement for the relocation of populations, the unmanning agreement, the status of the UN buffer zone and the agreed principles of bi-communality and bi-zonality for an eventual settlement of the Cyprus problem.

Instead of examining the questions of responsibility and imputability in the light of the supervisory organs’ case-law on the matter, the Court preferred to make purely political statements regarding non-recognition of the TRNC on which it based its conclusions on the status of the TRNC, without even attempting to examine the criteria of statehood in international law. However, under international law, recognition is not a constitutive element of statehood. The Court disregarded the perfectly democratic structure of the TRNC, which possesses intrinsic legitimacy, and its comprehensive political and legal system, which maintains the legacy and great influence of Anglo-Saxon law.

The Court also disregarded other major aspects of the internationalisation, such as the Agreement on the Exchange of populations, the fact that the United Nations recognise the political equality of the two communities and the existence of a buffer zone. Although the Court made a political assessment of the TRNC, thus exceeding its jurisdiction, it confined itself on the merits to a narrow civil law approach, as if it was a matter of ordinary expropriation. Turkey does not have the power to interfere in the TRNC’s domestic affairs or to order it to repeal its constitutional provisions. Nor can it handle the TRNC’s foreign relations.

Turkey can neither legislate in respect of matters of property in the northern part of Cyprus, nor can it exercise any control over such property. Moreover, Turkey cannot compel the authorities of the TRNC to allow any Greek Cypriot to return to his or her property. The applicants’ case does not relate to cease-fire/border violations. Moreover, there is no question that can be related to the Turkish intervention of 1974. Furthermore, the acts of the TRNC expropriating the properties referred to by the applicants constitute novus actus interveniens . Because of these acts, Turkey cannot be held responsible.

Elaborating on the latter points, the respondent Government submit that, apart from the constitutional and legal provisions examined by the Court in Loizidou v. Turkey, there are actual acts of state by the TRNC expropriating the properties referred to by the applicants. In this connection the respondent Government provide a detailed account of the legal framework that permitted the expropriation of properties such as those claimed by the applicants. The respondent Government argue that it would be unrealistic not to give any effect to the acts of the authorities in the northern part of Cyprus. A number of courts in Council of Europe countries have given legal effect to acts of unrecognised governments. Moreover, the Commission, in its above-mentioned report in Chrysostomos and Papachrysostomou v. Turkey, found that certain legal acts emanating from the TRNC had to be assumed to be legally valid under the Convention.

The Government further submit that, due to the relocation of the populations, it was necessary to facilitate the rehabilitation of Turkish Cypriot refugees, by looking after and putting to better use abandoned Greek Cypriot property. The Greek Cypriot side took similar measures in respect of abandoned Turkish Cypriot properties in the southern part of the island.

The status of the United Nations buffer zone should also be taken into consideration in deciding upon the applicants’ claims relating to their purported properties, particularly access thereto. To recognise the rights of the applicants to violate the buffer zone, as they aim to do with the present application, would encourage a breach of the agreed principles and aggravate the political problems.

Due to the agreed principles of bi-zonality and bi-communality, property rights and the question of reciprocal compensation have to be dealt with through negotiations, within the context of inter-communal talks, and cannot be settled by individual applications to the organs of the Council of Europe.

There is a public interest in seeing to it that the inter-communal talks concerning freedom of movement, settlement and the right to property are not undermined. The status of the UN buffer zone also renders it necessary to regulate the right of access to possessions until a settlement of the political problem is achieved. In the light of the above, it would be unrealistic to recognise for individual applicants the right of access to property and consequential property rights in isolation of the political situation.

As regards the applicants’ complaints under Article 14 of the Convention, the Government submit that the differentiation that has come about in the exercise of the freedom of movement and residence and the right to property of the two communities is a consequence of the political situation in the island, i.e. the existence of two governments that form the basis of a bi-zonal , bi-communal federal system. Such a situation cannot be an issue of discrimination under Article 14 of the Convention, but is entirely a matter for the two communities.

To sum up, the Government conclude that the applicants’ complaints are the consequence of the political situation in Cyprus and in no way attributable to the Turkish intervention in 1974. It is evident that the present application is motivated by political considerations rather than by genuine grievances, which can only be realistically remedied by an overall political solution to the Cyprus problem. Restrictions on the use and control of properties left by the applicants are justified by the present situation of the island and by the general interest, within the meaning of Article 1 of Protocol No. 1.

The applicants first comment on the fact that the observations they have received are under the title of the ‘TRNC’. They submit that by responding to those observations, they do not in any way recognise the so called ‘TRNC’, but are proceeding as though these observations have been submitted by Turkey.

The applicants further submit that they will refrain from challenging the “historical analysis” as presented by the respondent Government, as this analysis is irrelevant to the complaints and violations of human rights stated in this application, and would tire the Court unnecessarily. Moreover the applicants would like the Court to note that they object to the tendentious and selective review of the ‘history of Cyprus’ as set out by Turkey. They submit that this point has been the subject of other inter-state applications and has been determined there, the latest example being the inter-state application No. 25781/94. They reassure the Court that if any clarification is required on subjects regarding the historical analysis which it may deem necessary, then the applicants would gladly assist.

The applicants maintain that they were actually the owners of the properties mentioned in their application, as is corroborated by the copies they have submitted of the certificates of ownership issued by the lawful and internationally recognised authorities of the Republic of Cyprus. The respondent Government have failed to produce the original full records of the Land Authority of the Republic of Cyprus, which they illegally detain.

As regards the ratione temporis jurisdiction of the Court, it is sufficient, according to the applicants, to demonstrate that they had a proprietary interest in the disputed properties after the date on which Turkey accepted the jurisdiction of the Commission and the Court, and that there has been an interference with that right after that date. There is no doubt that the applicants had such an interest since at least 1974. In addition, not only were the applicants denied access to their property but the respondent Government themselves point out that there was a significant change in the treatment of Greek Cypriot owned property in northern Cyprus with the enactment by the TRNC of Law No 52 of 1995. The reasoning of the Court in the Loizidou case demonstrates that the Court denied legal validity not only to Article 159 of that law, but also to all subsequent legislation enacted by the TRNC authorities.

The applicants submit that the Government are responsible under the Convention for the violation of the applicants’ rights and that there are no binding legislative or administrative acts that have any bearing on the matter. The present application cannot be distinguished from the Loizidou case, except for the fact that in this case all the applicants had their homes in Famagusta , unlike the Loizidou case where the applicant had her home in Nicosia since 1972. The effect of that case is that it is not necessary for applicants to show that they have attempted, since the date on which Turkey accepted the competence of the European Commission of Human Rights, to cross the buffer zone in order to accede to their properties and have been prevented from doing so by the Turkish armed forces (even if in this particular case, the applicants did try to cross the buffer zone, for the last time on 19 December 1989, bearing in mind that the application was lodged in December 1989).

It is enough that their property rights have been interfered with by the TRNC. The argument that in the present case there have been acts of state expropriating the properties is an admission that there has been such an interference. These acts cannot constitute novus actus interveniens because, in order to be so, an independent State for which the respondent Government is not responsible in international law should have passed them, which is not the case here, as has already been determined in the Loizidou case.

As regards the argument that the TRNC is not a “subordinate local administration”, it has been put before the Court and the Commission on a number of occasions and has always been rejected. The judicial decisions mentioned by the Government, in support of their thesis that effect may be given to the acts of a de facto administration, did not concern an administration which has been established in defiance of the resolutions of the Security Council and which has obtained no international recognition at all.

As to the buffer zone regime and the future outcome of the bi-communal talks, they have no bearing upon either the imputability of the interference to Turkey or the compatibility of the interference with the Convention.

The arrangements between the two communities, namely the “ Makarios-Denktash Agreement” of 1977 and the “press communiqué” issued in Vienna in 1975, are not relevant to the application. Furthermore, the existence of inter-communal negotiations were well known to the Court when it decided the Loizidou case and also have no bearing on the question of compensation, as alleged by the Government (judgement of 29 July 1998 [Article 50] §26).

Moreover, the applicants argue that the interference with their property rights cannot be justified under Article 1 of Protocol No. 1. The policies of the TRNC cannot furnish a legitimate aim since the establishment of the TRNC was an illegitimate act condemned by the Security Council. Ex iniuria ius non oritur . For the same reason, the interference cannot be found to be in accordance with the law and the general principles of international law. Nor was the interference proportionate. As the Court held in Loizidou v. Turkey, the need to re-house displaced Turkish Cypriots cannot justify the complete negation of the applicants’ property rights. This conclusion is reinforced by the existence of evidence that much of the property taken from Greek Cypriots has been used to house settlers from mainland Turkey. In the present case this argument carries more weight, as the property in Famagusta has not been used to house Displaced Turkish Cypriots from the South, but has since 1974 remained a ghost town. This can be seen in the decision of the Commission in Application 25781/94, Cyprus v. Turkey, Decision of 7 September 1996, 23 EHRR 244, p.256 where it found that:

“ Except for a Turkish army club, the use of two hotels as recreational facilities for the Turkish armed forces and a limited amount of settlement in hostels by students of the Turkish sponsored Eastern Mediterranean University, Varosha ( Famagusta ) has remained uninhabited.”

The Court also held in Loizidou v. Turkey that the fact that property rights were one of the subjects under discussion in the inter-communal talks could not justify the taking of property without any compensation.

As regards Article 8 of the Convention, the applicants submit that, contrary to the Loizidou case, they and the persons whom they represent, had their principal residence in the town of Famagusta . They claim to be displaced persons under Article 8 of the Convention, as those described by the European Commission of Human Rights in its reports in the inter-state applications of Cyprus against Turkey. As the respondent Government do not include in their observations any arguments justifying the interference under that Article, they thereby admit the lack of any legal justification.

As regards Article 13 of the Convention, the applicants maintain that they have no effective remedy before a national authority either in Turkey or in northern Cyprus. The Turkish courts will not entertain any challenge to the actions of the Turkish armed forces in northern Cyprus or to those of the TRNC, and the courts established in the TRNC have no legitimacy. In any event, the applicants are denied access to the TRNC and cannot, therefore, make use of any “courts” which exist there. Nor would such courts have jurisdiction over the Turkish armed forces or be able to override Article 159 of the TRNC Constitution.

Finally, the applicants argue that their human rights are violated solely because they are Greek Cypriot, in breach of Article 14 of the Convention. To argue that this is due to the separation between the two communities, as the respondent Government do, would justify any discrimination between Turkish and Greek Cypriots. The laws of the TRNC discriminate against Greek Cypriots and the Commission has found a violation on this basis in the first and second inter-state cases (Applications Nos. 6780/74 and 6950/75 Cyprus v. Turkey, Comm. Report, 10.7.76, unpublished).

The Court will first examine the respondent Government’s submission that the application is incompatible ratione personae . The Court recalls in this connection that in its Loizidou v. Turkey judgement of 18 December 1996 it found as follows:

“It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’. Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus” ( op. cit ., pp. 2235-2236, § 56).

The Court considers that, insofar as the issue of “jurisdiction” under Article 1 of the Convention is concerned, the applicants’ situation is not materially different from that of the applicant in Loizidou v. Turkey, since the present applicants claim to have had their homes and to be the owners of properties in the northern part of Cyprus, and Turkey’s obligation to secure to the applicants the rights and freedoms set out in the Convention extends to that part of the island. It follows that the application cannot be rejected as incompatible ratione personae.

The Court further notes that the Government argue that the application is incompatible ratione materiae because the applicants no longer have titles to the properties concerned and incompatible ratione temporis because there is no question of a continuing violation that could have subsisted until 28 January 1987 when Turkey recognised the right of individual petition. The Court considers that these arguments are closely linked to the substance of the applicants’ complaints. As a result, they should be examined together with the merits of the application.

Having examined the parties' remaining observations, the Court considers that the application raises serious questions of fact and law, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, by a majority,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President