THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16654/90 by Soula ZAVOU 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 , Mr J. Hedigan, 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,

Having regard to the Commission’s partial decisions of 29 August 1994 and 2 March 1998,

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 37 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.

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

All the applicants claim to be 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

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 within the meaning of 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 have not submitted any title deed, certificate of registration or other documents substantiating their claims to immovable property under the Convention;

- the applicants’ claims as to their home and property as well as their claims relating to the alleged discrimination as to the above-mentioned rights can only be resolved within the framework of the island’s inter-communal talks and a bi-zonal settlement;

- in any event, the applicants’ claims under Article 8 cannot be entertained since they are no longer living in the area where they allegedly had their homes. According to the Court, the notion of “home” in that provision cannot be interpreted “to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives” (Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996–VI, § 66);

- 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. Further, the Court discounted the complex historical and political circumstances relating to the issues of property. This application has to be decided on its own facts and in light of the recent developments in Cyprus;

- 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; and

- 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 applicants contest 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), the Cyprus v. Turkey judgment of 10 May 2001 ([GC], no. 25781/94, to be published in ECHR 2001–IV) and the conclusions of the European Commission of Human Rights in its report of 4 June 1999 ( merits) in the same case.

The applicants maintain that the Government are in the position and under an obligation to provide the Court with the records of title for the relevant properties since the applicants have no access to the relevant district Land Registries in northern Cyprus.

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 the legality of the interference with their property is unassailable in the TRNC courts as confirmed by the Court in the Cyprus v. Turkey judgment (op. cit., § 184). Thus, there is no effective remedy available to them within the meaning of Article 13 of the Convention.

Finally, the applicants argue that their human rights have been violated solely because they are Greek Cypriots, contrary to Article 14 of the Convention. In their view, the Commission’s findings in its Report of 4 June 1999 as to the discriminatory nature of the interference with their rights under Articles 8 of the Convention and 1 of Protocol No. 1 apply mutatis mutandis to this case ( ibidem ).

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 v. 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.

As to the Government’s assertion that the applicants’ claim about their houses does not fall within the notion of “home” under Article 8 of the Convention, the Court notes that the properties involved would have constituted a home within the meaning of Article 8 § 1 of the Convention which they had been obliged to leave in 1974. Consequently, the present case is distinguishable from that of Mrs Loizidou where only land and construction works were at issue (cf. the aforementioned Loizidou judgment, §§ 65-66). The Court also finds that the continuing impossibility for the applicants to return to their home constitutes an interference with their Article 8 right. The Court therefore rejects the Government’s contention to the contrary.

The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that 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.

For these reasons, the Court by a majority

Declares the remainder of the application admissible, without prejudging the merits.

Vincent Berger Georg Ress R egistrar President

ANNEX I

The applicants of the present application, all permanent residents of Famagusta until July 1974 and since then residents of Limassol, are as follows:

1. Soula ZAVOU, born in 1950, in Famagusta.

2. Clairi ANGELIDOU, born in 1932.

3. Iris PROCOPIOU, born in 1944, in Famagusta.

4. Chrystalleni LOUCA, born in 1928, in Ayios Sergios, Famagusta.

5. Loulla HILIMINDRI, born in 1914, in Famagusta.

6. Lenia CHRYSOSTOMOU, born in 1936, in Larnaca.

7. Antigoni ANTONIADOU, born in 1923, in Fiti.

8. Mary PIERIDOU, born in 1937, in Limassol.

9. Photini NEOPHITOU, born in 1928, in Famagusta.

10. Koula PHYSENTZOU, born in 1933, in Ayia Triada.

11. Julia TOUMAZI, born in 1920, in Famagusta.

12. Magda PSATHA, born in 1928, in Famagusta.

13. Maro TOUFEXI, born in 1928, in Famagusta.

14. Sofoula POTAMITOU, born in 1953, in Famagusta.

15. Anastasia EVANGELIDES, born in 1960, in Athens.

16. Ariadni EVANGELIDES, born in 1927, in Famagusta.

17. Ariadni THEODOROU, born in 1933, in Famagusta.

18. Eleni SOLOMONIDES (RIRI), born in 1921, in Famagusta.

19. Dora LOIZIDOU, born in 1931, in Famagusta.

20. Domna MARKOU, born in 1935.

21. Phillio VARNAVA, born in 1932, in Famagusta.

22. Niki PAVLIDOU, born in 1935, in Famagusta.

23. Ersi DICOMITOU, born in 1939, in Famagusta.

24. Dora BASILIADOU, born in 1939, in Famagusta.

25. Militsa HADJIMANOLI, born in 1946, in Famagusta.

26. Demetra (PAVLIDOU) IOANNIDOU, born in 1945, in Trikomo.

27. Androula ZANGYLOU, born in 1943, in Famagusta.

28. Fotoula FRANGESKOU, born in 1946, in Jerusalem.

29. Yiannoula IOANNIDOU, born in 1935, in Kakopetria.

30. Christina KLERIDES, born in 1940, in Lefkonico.

31. Dina CHOMATA, born in 1941, in Famagusta.

32. Chariclea PERICLEOUS, born in 1941, in Famagusta.

33. Andry PAPA, born in 1950, in Famagusta.

34. Thelma SEVASTOPOULOU, born in 1936, in Famagusta.

35. Morfo PANAYIOTOU, born in 1951, in Famagusta.

36. Avgi PIERIDOU, born in 1929, in Famagusta.

37. Maro POUYOUROU, born in 1933, in Famagusta.

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 - Soula ZAVOU

1. Famagusta, Chrisospiliotissa, Registration no. AO-16/10/86, Description: House Use: Residence, Share: Whole

2. Famagusta, Ayios Ioannis, Registration no. AO - 16/10/86, Description: Block of flats, Use: Commercial - rent, Share: Whole

3. Famagusta, Ayios Loucas, Registration no. BO-16/10/86, Description: Orange Grove, Use: Commercial, Share: Whole

Applicant no. 2 - Clairi ANGELIDOU

1. Famagusta, Dherinia, Registration no. 33/29, 222/2/8, 223/2, 324/2/1, 325/1/2/2, 326/4, Description: Plot of Land, Use: Building future residence, Share: Whole

2. Famagusta, Golden Sand, Registration no. XXXIII/2/2, III, 33/21.2.III, Description: Land Block 594, Use: Building a house for her children, Share: Whole.

Applicant no. 3 - Iris PROCOPIOU

1. Famagusta, Agia Triada, Registration no.9023/1163/1162, Description: House, Use: Residence, Share: Whole

2. Famagusta, Neapolis, Registration no. 2648, Description: Plot of Land, Use: ? , Share: Whole

3. Famagusta, Pogazi, Monarka, Registration no. ? , Description: Plot of Land, Use: ? , Share: Whole

Applicant no. 4 - Chrystalleni LOUKA

1. Famagusta, Ayios Nicolaos, Registration no. 6472, Description: House, Use: Residence Share: Whole

2. Famagusta, Ayios Sergios, Mixies, Registration no.1253, Description: Plot of Land, Use: Agriculture, Share: Whole

3. Famagusta, Ayios Sergios, Ayia Ekaterine, Registration no. 3122, Description: Plot of Land, Use: Agriculture, Share: Whole

Applicant no. 5 - Loula HILIMINDRI

1. Famagusta, Ayia Triada, Registration no. ? , Description: Hotel, Use: Business, Share: Whole

Applicant no. 6 - Lenia CHRYSOSTOMOU

1. Famagusta, Ayia Paraskevi, Registration no. Sh/Pl 33/12/6.3, Description : Two houses, Use: ? , Share: 1/2

Applicant no. 7 - Antigoni ANTONIADOU

1. Famagusta, Ayios Nikolaos, Registration no. SDD451/86, Description: House, Use: Residence, Share: 1/2

2. Famagusta, Ayios Nikolaos, Registration no. SDD452/86, Description: Plot of Land, Use: To sell, Share: Whole

Applicant no. 8 - Mary PIERIDOU

1. Famagusta, Registration no. 698, Description: Apartment on the top floor of Coralli Court, Use: Renting it to holiday makers, Share: Whole

2. Famagusta, Registration no. 134, Description: Apartment on the top floor of Coralli Court, Use: Renting it to holiday makers, Share: Whole

3. Famagusta, Martzia, Strouvella, Description: Plantation with olive trees, Use: Producing olives, Share: Whole

Applicant no. 9 - Photini NEOPHITOU

1. Famagusta, Varosia, Ayios Memnon, Registration no. 2115, Description: Building Site, Use: Orange Gardens, Share: Whole

2. Famagusta, Varosia, Ayios Memnon, Registration no. 2123, Description: Building Site, Use: Orange Gardens, Share: Whole

3. Famagusta, Varosia, Kato Varosia, Registration no. 3475, Description: House, Use: Residence, Share: Whole

Applicant no. 10 - Koulla PHYSENTZOU

1. Famagusta, Registration no. 33/13, Description: Four floor house, Use: Residence and for rent, Share: Whole

2. Famagusta, Ayia Triada, Registration no. 3/30, 623/3/3, Description: Plot of Land, Use: Investment, Share: Whole

3. Famagusta, Yialousa, Ayios Yeorgios, Registration no. 3/23, 129, Description: Plot of Land, Use: Investment, Share: Whole

Applicant no. 11- Julia TOUMAZI

1. Famagusta, Registration no. ? , Description: Block of Shops and Flats, Use: For rent, Share: Co-owner

2. Famagusta, Registration no. ? , Description: Ground floor shop with show window, Use: Rented out as shop for glass ware, Share: co ‑ owner

3. Famagusta, Registration no. ? , Description: Shops, Use: Rented out, Share: Whole

4. Famagusta, Registration no. ? , Description: Building Site, Use: Vacant, Share: Whole

5. Famagusta, Registration no. ? , Description: House, Use: Residence, Share: Co-owner

Applicant no. 12- Magda PSATHA

1. Famagusta, Ayia Zoni, Registration no. ? , Description: Plot of Land, Use: For building, Share: Whole

2. Famagusta, Varosia, Chrisi Akti, Registration no. ? , Description: Flat, Use: Rent, Share: Whole

Applicant no. 13- Maro TOUFEXI

1. Famagusta, Ayios Ioannis, Registration no. 33/12, Plot no. 481, Description: House and garden, Use: Residence, Share: Whole

2. Famagusta, Rizokarpasso, Anavrissi, Registration no. 4104, Plot no. 256, Description: House and Garden, Use: Summer residence, Share: Whole

Applicant no. 14 - Sofoula POTAMITOU

1. Famagusta, Ayios Sergios, Petrodicles, Registration no. 1422, Description: Plot of Land in Salamina area, Use: ? , Share: 1/2

2. Famagusta, Golden Sands, Registration no. A.1065, Description: House Use: Residence, Share: 1/2

Applicant no. 15- Anastasia EVANGELIDES

1. Famagusta, Chrisi Akti, Registration no. 33/21 691, Description: House, Use: Residence, Share: Whole

2. Famagusta, Chrisi Akti, Registration no. 33/21 693, Description: House, Use: For rent, Share: Whole

3. Famagusta, Ayios Loukas, Registration no. 6697, Description: Plot of Land, Use: ? , Share: Whole

Applicant no. 16- Ariadni EVANGELIDES

1. Famagusta, Stavros, Registration no. SDD 626/85, Description: Plot of Land with two houses, Use: Residence, Share: Whole

Applicant no. 17- Andriani THEODOROU

1. Famagusta, Registration no. 440, Description: Building, Use: For rent, Share: Whole

2. Famagusta, Registration no. 299, Description: Building - three houses, Use: Residence and two houses for rent, Share: Whole

3. Famagusta, Registration no. 576 and 577, Description: Shop, Use: Rent, Share: Whole

4. Famagusta, Registration no. 685, Description: Building, Use: The whole building was rented out, Share: Whole

5. Famagusta, Limni Ayios Sergios, Registration no. 122/1/2, 122/1/3, 122/1/7, 122/1/8, Description: Four building plots, Use: For future development, Share: Whole

Applicant no. 18- Eleni SOLOMONIDES (RIRI)

1. Famagusta, Ayios Nicolaos, Registration no. 7240, Sheet / Plan: XXXIII 12,6,I, Description: House, Use: Residence, Share: Whole

Applicant no. 19 - Dora LOIZIDOU

1. Famagusta, Ayios Nicolaos, Registration no. 6192, Description: House, Use: Residence, Share: Whole

2. Famagusta, Lefkonico, Monopati Angylou, Registration no. 4120, Description: Plot of Land, Use: Agriculture, Share: Whole

3. Famagusta, Lefkonico, Fterkaris, Registration no. 81, Description: Plot of Land, Use: Agriculture, Share: Whole

Applicant no. 20 - Domna MARKOU

1. Famagusta, Ayios Nicolaos, Registration no. Sh/Pl 33/12.6.II, Block E, Description: Plot of Land, Use: ? , Share: 1/2

2. Famagusta, Ayia Zoni, Registration no. Sh/ Pl 33/20.3.II, Block F, Description: Two Houses, Use: ? , Share: 1/2

Applicant no. 21 - Phillio VARNAVA

1. Famagusta, Ayios Nicolaos, Registration no. Sh/ Pl 33/13.I.III, Plot no. 42, Description: House - ground floor, two flats - 1 st floor, Use: Residence and the flats under rent, Share: Whole

2. Famagusta, Ayios Serghios, Ambelia, Registration no., Sh/ Pl 24/11, Plot no.34, Description: Plot of Land (field), Use: ? , Share: Whole

3. Famagusta, Derynia Livadia, Derynia, Registration no. Sh / Pl 33/37, Plot no. 680, Description: Plot of Land (field), Use: ? , Share: Whole

Applicant no. 22 - Niki PAVLIDOU

1. Famagusta, Ayios Nicolaos, Registration no. ? , Description: House, Use: Residence, Share: Whole

Applicant no. 23 - Ersi DICOMITOU

1. Famagusta, Ayios Ioannis, Registration no. ? , Description: House, Use: Residence, Share: Whole

2. Famagusta, Neta Karpasia, Neta, Registration no. ? , Description: Plot of Land, Use: Agriculture, Share: Whole

Applicant no. 24 -Dora VASILIADOU

1. Famagusta, Ayios Nicolaos, Registration no. ? , Description: House, Use: Residence, Share: Whole

2. Famagusta, Salamina, Registration no. ? , Description: Plot of Land, Use: Investment, Share: Whole

Applicant no. 25 - Militsa HADJIMANOLI

1. Famagusta, Ayia Zoni, Registration no. 9514, Description: House, Use: Residence, Share: Whole

2. Famagusta, Registration no. 33/20-309, Description: Orange tree garden, Use: Orange fruit trading, Share: Whole

3. Famagusta, Registration no. 33/21-22, Description: Orange tree garden, Use: Orange fruit trading, Share: Whole

Applicant no. 26 - Demetra (PAVLIDOU) IOANNIDOU

1. Famagusta, Tricomo, Registration no. ? , Description: House, Use: Residence, Share: Whole

Applicant no. 27 - Androulla ZANGYLOU

1. Famagusta, Ayia Zoni, Registration no. 9568, Description: House, Use: Residence, Share: Whole

Applicant no. 28 - Fotoulla FRANGESKOU

1. Famagusta, Chrysospiliotisa, Registration no. A-837, Description: House, Use: Residence, Share: Whole

Applicant no. 29 - Yiannoula IOANNIDOU

1. Famagusta, Ayios Ioannis, Registration no. ? , Description: Building, Use: House used as residence and ground floor for rent, Share: Whole

Applicant no. 30 - Christina KLERIDES

1. Famagusta, Ayios Ioannis, Registration no. ? , Description: Two houses, Use: One as residence and one for renting purposes, Share: Whole

2. Famagusta, Lefkonico, Registration no. ? , Description: Plot of Land, Use: Agriculture, Share: Whole

Applicant no. 31 - Dina CHOMATA

1. Famagusta, Stavros, Registration no. ? , Description: Plot of Land, Use: Orange gardens, Share: Whole

Applicant no. 32 - Chariclea PERICLEOUS

1. Famagusta, Ayios Ioannis, Registration no. 4659, Description: House, Use: Residence, Share: Whole

2. Famagusta, Derynia, Registration no. 9180, Description: Plot of Land, Use: To build a house, Share: Whole

3. Famagusta, Salamina Area, Registration no. ? , Description: Plot of Land, Use: To build a house, Share: Whole

Applicant no. 33 - Androniki PAPA

1. Famagusta, Ayios Nicolaos, Registration no. 33/13 E 642, Description: House, Use: Residence, Share: Whole

Applicant no. 34 - Thelma SEVASTOPOULOU

1. Famagusta, Ayios Nicolaos, Registration no. 9512, Description: House, Use: Residence, Share: Whole

2. Famagusta, Limnia, Yiannades, Registration no. 1314-3613-2930, Description: Plot of Land, Use: Agriculture, Share: Whole

3. Famagusta, Limnia, Limnia, Registration no. 2547, Description: Plot of Land, Use: Agriculture, Share: Whole

Applicant no. 35 - Morfo PANAYIOTOU

1. Famagusta, Ayios Loukas, Registration no. ? , Description: Factory, Use: Aluminium constructions, Share: 1/2

Applicant no. 36 - Avgi PIERIDOU

1. Famagusta, Chrisi Akti, Registration no. 33/21/1/II, Description: Plot of Land, Use: ? , Share: Whole

2. Famagusta, Chrisi Akti, Registration no. 30/20/3 II, Description: House, Use: Residence, Share: Whole

Applicant no. 37 - Maro POUYOUROU

1. Famagusta, Ayios Ioannis, Registration no. ? , Description: House Use: Residence, Share: Whole

2. Famagusta, Komi Kebir, Registration no. ? , Description: Plot of Land, Use: Agriculture, Share: Whole