THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19900/92 by Phanos EPIPHANIOU and Others against Turkey

The European Court of Human Rights (Third Section), sitting on 26 September 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris, Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja , judges , Mr F. Gölcüklü , ad hoc judge , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 26 January 1990 and registered on 27 April 1992,

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

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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The 9 applicants (see Annex I) are Cypriot nationals of Greek Cypriot origin. In the proceedings before the Court they are represented by Mr Adamos Adamides , a lawyer practising in Limassol . On 15 February 2000 and on 17 January 2001 applicants nos. 3, 5 and 9 informed the Court that they wished to withdraw from the proceedings since they were not able to trace registration details of their properties in the occupied areas. They reserved their right to apply afresh.

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

The applicants were permanent residents of and have their homes as well as other immovable properties in Famagusta , in northern Cyprus (see Annex II).

Upon the 1974 Turkish intervention, the applicants left for southern Cyprus. They claim that they were 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 authorities. They have made several attempts to return to their homes and properties in Famagusta , the last occasion being on 23 December 1989, but they were not allowed to do so by the Turkish military authorities. The latter prevent them from having access to and from using and possessing their houses and properties.

COMPLAINTS

The applicants complain under Articles 8, 13 and 14 of the Convention, and 1 of Protocol No. 1 of a continuing violation by Turkish authorities of the rights guaranteed by these provisions.

THE LAW

1 . The Court notes that in their observations of 15 February 2000 and in a letter of 17 January 2001, applicants nos. 3, 5 and 9 informed the Court that they wished to withdraw from the proceedings since they were not able to trace registration details of their properties in the occupied areas.

The Court finds no reasons of a general character affecting the observance of the Convention that would necessitate a further examination of their complaints, and thus decides to strike out the application insofar as it has been introduced by applicants nos. 3, 5 and 9, in accordance with Article 37 § 1(a) of the Convention.

2 . The applicants complain of a violation of their right to respect for their home and family life under Article 8 of the Convention and to peaceful enjoyment of their possessions under Article 1 of Protocol 1 No. 1. They also complain of a violation under Article 14 of the Convention by virtue of discriminatory treatment against them in the enjoyment of the above-mentioned rights solely because they are Greek Cypriots. Lastly, they complain that they have no effective remedy before a national authority either in Turkey or in northern Cyprus, contrary to Article 13 of the Convention.

The relevant provisions read as follows:

Article 8 of the Convention

« 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 13 of the Convention

« 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. »

Article 14 of the Convention

« 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 1 of Protocol No. 1

« 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 ... . ».

The Government reject the applicants’ complaints with submissions that include the following points:

–the case is outside Turkey’s competence ratione temporis , the facts on which it is based having arisen prior to Turkey’s recognition of the Court’s compulsory jurisdiction on 22 January 1990; this is all the more so that the applicants’ complaints relate to instantaneous acts and not to a continuing situation;

–Turkey is not responsible for matters in northern Cyprus which fall within the exclusive control of the wholly independent and democratic Turkish Republic of Northern Cyprus (‘TRNC’) which, along with its predecessor, the Turkish Federated State of Cyprus, lawfully expropriated certain property;

–the applicants’ claims as to their home and property can only be resolved within the framework of the island’s inter-communal talks and a bi-zonal settlement;

–regarding the applicants’ complaint under Article 13 of the Convention, Turkey is not able to interfere with the judicial system of the TRNC or to provide remedies to supplement those existing under domestic law, if such remedies are deemed as insufficient;

–as regards the applicants’ complaint under Article 14 of the Convention, the present 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 on the island, i.e. the existence of two separate governments, that form the basis  of a bi -communal and bi-zonal 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;

–the Court’s judgment of 18 December 1996 in the Loizidou case should not constitute a  precedent to this application. This is because inter alia all the relevant facts, including the intervening acts by Turkish Cypriot authorities, were neither before the Commission when it drew up its report, nor before the Court, when it drew up its judgment . This application has to be decided on its own facts and in light of the recent developments in Cyprus.

The applicants refute these submissions, relying essentially on the reasons given by the Court for rejecting similar objections raised by Turkey in its Loizidou v. Turkey judgment of 23 March 1995 ( preliminary objections ) (Series A. no. 310), the above-mentioned Loizidou v. Turkey judgment ( merits ), the Loizidou v. Turkey judgment of 29 July 1998 ( Article 50 ) (Reports 1998-IV), and the conclusions of the European Commission of Human Rights in its Reports of 4 October 1983 and 4 June 1999 in the inter ‑ State cases of Cyprus v. Turkey nos. 8007/77 and 25781/94.

As regards Article 8 of the Convention the applicants consider that their claims may be clearly distinguished on the facts from that rejected by the Court in the Loizidou case since they all had their principal residence in the District of Famagusta . They affirm that the violation of their right under Article 8 of the Convention was not justified under paragraph 2 of that provision.

As regards Article 13 of the Convention the applicants maintain that they have no effective remedy before a national authority either in Turkey or 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 have been violated solely because they are Greek Cypriots, contrary to Article 14 of the Convention. To argue that this is due to the separation between the two communities, as the respondent Government do, would appear to justify any discrimination between Turkish and Greek Cypriots. As the Commission has concluded the law of the TRNC discriminate against Greek Cypriots (Application nos. 6780/74 and 6950/75, Cyprus v. Turkey , Comm. Report, 10.7.76, unpublished and no. 25781/94, Cyprus v. Turkey , Comm. Report ( merits ) of 4 June 1999, to be reported in ECHR 2001-IV).

The Court refers to its dismissal in the aforementioned Loizidou judgment ( merits ) of the Government’s preliminary objections as to Turkey’s alleged lack of jurisdiction and responsibility for the acts of which the complaint is made (§§ 39–47 and 49–57). In that same judgment the Court rejected the Government’s objection ratione temporis (§§ 39–47) and recognised the continuing nature of the alleged violation of Article 1 of Protocol No. 1 (§ 56).  It further rejected their arguments regarding the effect which the Court’s consideration of the applicants’ Convention claims could have on inter-communal talks (§ 64). Many of these considerations were confirmed by the Court in its judgment of 10 May 2001 in the inter ‑ State case of Cyprus and Turkey . The Court recalls that in its latter judgment it rejected the Government’s arguments that it had erred in its approach to the issues raised by the Loizidou case, especially on the matter of Turkey’s liability for alleged violations of Convention rights, including allegations of continuing interferences with property rights under Article 1 of Protocol No. 1 occurring within the TRNC, as well as on the question of the relevance of the inter-communal talks to the Court’s examination of such allegations ( Cyprus v. Turkey [GC], no. 25781/94, §§ 69, 75–81, 173 ‑ 175 and 184–189, to be published in ECHR 2001–IV).

The Court finds no reason to depart from these conclusions. Accordingly, it rejects the Government’s aforementioned objections to the admissibility of the application.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3 . Finally, the Court notes that after observations by both parties were submitted, the applicants, in a letter dated 16 July 2000, invoked a violation of Article 9 of the Convention, which guarantees freedom of thought, conscience and religion.

The Court notes that the applicants have failed to substantiate their complaints under this provision. Further, the Court finds that the facts of the case do not disclose any appearance of a violation of the above-mentioned provision.

It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court by a majority

Decides to strike out the application insofar as it has been introduced by applicants nos. 3, 5 and 9;

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 8, 13 and 14 of the Convention and 1 of Protocol 1;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President

ANNEX I

The applicants of the present application, all permanent residents of Famagusta until 1974, are as follows:

1. Phanos EPIPHANIOU, born on 24 September 1934 in Milia , Famagusta , and since 1974 resident of Nicosia, last Mayor of Famagusta .

2. Sofi PHITIDOU, born on 15 May 1947 in Famagusta and since 1974 resident of Nicosia, Deputy Mayor of Famagusta by Rotation - Counsellor.

3. Pantelakis KYRIAKIDES, born on 27 July 1933 in Famagusta and since 1974 resident of Limassol , Counsellor.

4. Kleanthis STAVRI, born on 3 November 1936 in Paralimni , Famagusta and since 1974 resident of Nicosia, Counsellor.

5. Andreas BOYIADJIS, born on 30 November 1940 in Larnaca , and since 1974 resident of Limassol , Mayor by Rotation.

6. Christodoulos DEMETRIADES, born on 4 November 1925 in Limassol , and since 1974 resident of Limassol , Counsellor.

7. Theodoros ECONOMOU born on 20 July 1924 in Frenaros , Famagusta , and since 1974 resident of Larnaca , Mayor by Rotation.

8. Anastassis GEORGIOU born on 11 December 1933 in Trikomo , Famagusta and since 1974 resident of Larnaca , Counsellor.

9. Ioakim KALLIS born on 10 May 1943 in Liopetri , Famagusta and since 1974 resident of Limassol , Mayor by Rotation.

ANNEX II

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

Applicant no. 1 - Phanos EPIPHANIOU

1. Famagusta , Ayios Ioannis , Plot No. 370, Sheet / Plan: 33/12, Use: Residence on 1 st floor and shops on ground floor, Share: 1/2 (other 1/2 in the name of his wife).

2. Famagusta , Ayios Loukas , Palios Ayios Loukas , Plot No. 974, Sheet / Plan: 33/11,Use: Building site for investment, Share: Whole

3. Famagusta , Milia , Haragkas , Plot No. 214/4/3, Sheet / Plan: 23/14, Use: Land for dividing into building sites, Share: Whole

Applicant no. 2 - Sofi PHITIDOU

1. Famagusta , Davlos , Kantara , Plot No. 68.9/1, Sheet / Plan: 7/50, Use: House with yard , her holiday house, Share: Whole

2. Famagusta , Ayios Nicolaos , Plot No. 200, Sheet / Plan: 33/12, Use: Land for development, Share: Whole

3. The applicant’s home in Famagusta was registered in the name of a family company established by her father.

Applicant no. 4 - Kleanthis STAVRI

1. Famagusta , Ayia Zoni , plot No. 105, Sheet / Plan: 33/12.6.4, Use: House with yard, his residence, Share: 1/2 (other 1/2 in the name of his wife).

Applicant no. 6 - Christodoulos DEMETRIADES

1. Famagusta , Spathariko , Kontonouri or Prochnades , Plot No. 270, Sheet / Plan : 82, Use: Land, Share: 1/2

2. Famagusta , Ayios Loukas , Plot No. 948, Sheet / Plan : 5028, Use: Land, Share: Whole

3. Famagusta , Ayios Loukas , Plot No. 755, Sheet / Plan : 4224, Use: Building site, Share: Whole

4. Famagusta , Ayios Loukas , Plot No. 754, Sheet / Plan : 4223, Use: Building site, Share: Whole

5. Famagusta , Ayios Loukas , Plot No. 753, Sheet / Plan : 4222, Use: Building site, Share: Whole

6. Famagusta , Ayios Loukas , Plot No. 752, Sheet / Plan : 4221, Use: Building site, Share: Whole

7. The applicant’s home in Famagusta was registered in his wife’s name.

N.B. The applicant has been informed that Plots of Land nos. 2–6 have been used or permitted to be used by the Respondent Government for building part of a university or other structures.

Applicant no. 7 - Theodoros ECONOMOU

1. Famagusta , Kato Varoshia , Chrysospiliotissa - Kamini tou Kiayia , Plot No. 371, Sheet / Plan: 33/19, Use: Land with two houses, his residence and for renting, Share: Whole.

Applicant no. 8 - Anastassis Georgiou

1. Famagusta , Trikomo , Latsia , Plot No. 137/1/6/2, Sheet / Plan: 15/43, Use: Land with trees for agriculture, Share: 1/6

2. Famagusta , Pervolia Trikomou , Kokkines , Plot No. 127/2/2, Sheet / Plan: 15/43, Use: Land for agriculture, Share: Whole

3. Famagusta , Pervolia Trikomou , Kokkines , Plot No. 141, Sheet / Plan: 15/43, Use: Land for agriculture, Share: Whole

4. The applicant’s home in Famagusta was registered in his wife’s name.