THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16091/90 by Andri OLYMBIOU 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 I. Cabral Barreto , Mr L. Caflisch , 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 16 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the observations submitted by the Cyprus Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Andri Olymbiou, is a Cypriot national of Greek Cypriot origin born in 1950 and living in Nicosia. In the proceedings before the Court she is represented by Mr L. Clerides and Dr C. Clerides, both lawyers practising in Nicosia.

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

Property issues

The applicant claims to have her home as well as other immovable property in the occupied part of Nicosia, in northern Cyprus:

a. Nicosia, Ibrahim Pasha, Registration no. B433, Sheet / Plan: XXI/38.3.III, Plot no. 373, Description: Building site, Share: 1/2.

b. Nicosia, Ibrahim Pasha, Registration no. A533, Sheet / Plan: XXI/38.2.IV, Plot no. 497, Description: Building site with single storey house and a small house on the east half plot and trees, Use: Residence, Share: 1/2 (east plot). The above-mentioned property was transferred to the applicant by way of gift from her father Kyriakos Yianni Anatolitis on 7 August 1980 (Declaration of transfer no. D 5316/80).

The applicant claims that since the 1974 Turkish intervention she has been deprived of her property rights, her property being located in the area that is under the occupation and the control of the Turkish military authorities. She made an attempt to return to her home and property on 19 July 1989, but she was not allowed to do by the Turkish military authorities. The latter prevent her from having access to and from using and possessing her home and property.

The demonstration of 19 July 1989

On 19 July 1989, the applicant took part, together with the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below), in an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia. In the course of the demonstration the applicant was allegedly beaten and assaulted by Turkish military personnel and / or other personnel acting under Turkish control. The beatings were inflicted with electric clubs. She was then arrested and taken by bus to “Pavlides Garage”. She states that during her journey she was subjected to assaults, beatings and gestures of a sexual nature by the persons who had detained her. The crowd outside the garage was swearing, shouting abuse and threats as well as throwing stones at the garage some of which came through the roof. She complains that the conditions of detention in the garage were filthy and that she was not given any food and water until her interrogation took place the next day, the morning of 20 July 1989. Then she was taken to court and remanded in custody for three days. She was transferred with other women who had been arrested during the same events to Ortakeuy prisons, where she was kept in a ward. She claims that she had to lie down on a blanket in the corridor due to the lack of beds and that during the night she and the other detainees were harassed by the guards.

On 21 July 1989 the applicant was taken to court. She states that she had no legal representation or proper interpretation. However the respondent Government state that the applicant was asked if she wanted to avail the services of a lawyer but she refused and that she did not ask for legal representation. The Government also maintain that interpretation was given during the trial by qualified interpreters.

On 22 July 1989, the court sentenced the applicant to three days imprisonment and a fine of 50 Cyprus pounds. On 24 July 1989 she was released. She states that before she was released she was examined by a United Nations’ doctor who looked at her bruises and also the tuft of hair that had been pulled out during her arrest. The applicant alleges that she continues to suffer from a permanent, serious and incurable injury to her left shoulder, which she sustained during her arrest.

COMPLAINTS

The applicant complained under Articles 1, 3, 5, 6, 7, 8, 9, 10, 11, 13 and 14 of the Convention and 1 of Protocol No. 1 of a violation by Turkish authorities of the rights guaranteed by these provisions.

THE LAW

1. The applicant complains of a violation of her right to respect for her home and family life under Article 8 of the Convention and to peaceful enjoyment of her possessions under Article 1 of Protocol No. 1. She also complains of a violation of Article 14 of the Convention by virtue of discriminatory treatment against her in the enjoyment of the above-mentioned rights solely because she is Greek Cypriot.

The relevant provisions read as follows:

Article 8 of the Convention

“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

“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.”

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 applicant’s complaints with submissions that include the following points:

- the facts of this application have arisen prior to Turkey’s recognition of the Court’s compulsory jurisdiction on 22 January 1990. Thus Turkey is not responsible for the acts complained of in this application;

- 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. As a result of the intervening legislative, administrative and executive acts of the ‘TRNC’, the applicant is no longer the owner of the properties in question. Turkey can neither legislate in respect to matters of property in northern Cyprus, nor exercise control over such property situated outside its jurisdiction. Moreover, Turkey cannot compel the authorities of the ‘TRNC’ to allow any Greek Cypriot to return to his property;

- the information supplied by the applicant is not sufficient to establish proprietary interest. In particular, on the certificate of registration provided by the applicant, the name of the owner is recorded as “Androulla Savva Olymbiou, n ée Kyriakos Anatolitis”. Thus, there is no evidence that the applicant Andri Olymbiou is the same person as the alleged owner of the property in question. Further, the property was acquired more than six years after the Turkish intervention and therefore there could not be a violation vis- Ã -vis the applicant of any existing proprietary right in 1974 that could be said to have “continued” until the date of Turkish recognition of the individual right of application to the Commission;

- the aim of the demonstration of 19 July 1989, which lies at the heart of this case, was to make political propaganda. The applicant did not genuinely intend to go to her alleged property, which she knew was inaccessible under the circumstances in view of the existing political situation. As a result, the complaint concerning property rights is manifestly ill-founded;

- the applicant’s claim as to her property can only be resolved through negotiations and on the basis of the principles of bi-zonality and bi ‑ communality;

- even assuming that a question could arise under Article 1 of Protocol No. 1 the extensive control of use of property by the authorities of northern Cyprus is justified for the general interest, under the exception of the above-mentioned provision;

- the Court’s judgments of 18 December 1996 ( merits ) and of 29 July 1998 ( Article 50 ) in the Loizidou v. Turkey case ( Reports of Judgments and Decisions 1996-VI and 1998-IV) should not be considered as a precedent to this application. This is because inter alia all the relevant facts, including the intervening acts by the 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 applicant disputes 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 judgments (op. cit.), and the conclusions of the European Commission of Human Rights in its reports in the inter-state cases of Cyprus v. Turkey (applications nos. 6780/74 and 6950/75, Commission’s report of 10 July 1976 , unreported; application no. 8007/77, Commission’s report of 4 October 1983, Decisions and Reports (DR) 72, p. 5 ; application no. 25781/94, Commission’s report of 4 June 1999, reported in Cyprus v. Turkey [GC], no. 25781/94 , ECHR 2001–IV ).

As regards the Government’s arguments contesting the applicant’s title to the property in question, the applicant stresses that she is the owner of the above-mentioned properties in the northern part of Cyprus. She observes that the properties in 1974 were family properties and there was a natural expectation that she would acquire ownership of the property in due course. Subsequent acts of the ‘TRNC’ could not deprive her family of the title to these properties as held by the Court in the Loizidou v. Turkey case ( merits ), (op. cit.) and thus with the transfer she acquired the proprietary interest in the properties.

Further, the applicant argues that her human rights have been and are violated solely because she is Greek Cypriot, contrary to Article 14 of the Convention. To contend that this is due to the separation of the two communities would justify any discrimination between Turkish and Greek Cypriots.

Lastly, the applicant adopts the observations submitted by the Cyprus Government, which dispute the arguments of the respondent Government with submissions that include the following points:

- regarding the issue of imputability: the conclusions of the Court in its judgments in the above-mentioned Loizidou v. Turkey case (op. cit.), the decision of the Court in the Christodoulidou v. Turkey case (no. 16085/90, 7 December 1999, unreported) and the findings of the Commission in its report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.) that Turkey is responsible under the Convention for the acts and omissions of the ‘TRNC’, are applicable in this case;

- the applicant was driven from her home, by the Turkish invasion and has been consistently refused the right to return ever since, in violation of Article 8 of the Convention. This interference cannot be justified under the second paragraph of this provision;

- the burden of proof is on the Government to prove that the applicant did not own the relevant land. In the absence of evidence from the Government which proves that another individual owned the specific relevant property at the time of the Turkish invasion in 1974, the Government must be precluded from denying the applicant’s ownership of the relevant properties;

- the Commission’s findings in its report of 4 June 1999 (op. cit.) as to the discriminatory nature of the intereference with the rights of Greek Cypriots 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 (op. cit., §§ 39–47 and 49–57). In that same judgment the Court rejected the Government’s objection ratione temporis (op. cit., §§ 39–47) and recognised the continuing nature of the alleged violation of Article 1 of Protocol No. 1 (op. cit., § 54). It further rejected their arguments regarding the effect which the Court’s consideration of the applicant’s Convention claims could have on the inter-communal talks (op. cit., § 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 (op. cit.). 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, op. cit., §§ 69, 75–81, 173–175 and 184–189).

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 this part of 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 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.

2. The applicant also complains under Articles 3, 5, 6, 7, 11, and 13 of the Convention. Further she complains of a violation of Article 14 of the Convention in conjunction with Articles 5, 6 and 7 of the Convention.

The relevant provisions read as follows:

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5 of the Convention

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...”

Article 6 of the Convention

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Article 7 of the Convention

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Article 11 of the Convention

“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Article 13 of the Convention

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

The Government submit that this part of the application should be determined on the basis of the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (application nos. 15299/89 and 15300/89, Commission’s report of 8 June 1993, DR 86, p. 4). They state that the factual and legal bases of the present application are the same as those in the above-mentioned case that constitutes a pilot case. Further, Turkey is not in any way involved in the administration of justice by Turkish Cypriot courts and in the prison administration of northern Cyprus and Turkey has no jurisdiction or control over the legal system of northern Cyprus. They state that the applicant is intending to produce re-litigation before the Court on issues which have been already considered and ruled upon by the Commission. Thus, they maintain that this application is incompatible ratione personae and ratione loci with the provisions of the Convention and should be declared inadmissible.

The observations of the Government include submissions only as regards the judicial proceedings against the applicant. In particular the Government state that:

- the trial of the applicant was by an impartial and independent court;

- all the cases before the court, which formed part of a group of cases and included that of the applicant, were divided into groups so as to ensure a speedy trial and help the accused in their defence;

- the applicant did not ask for more time to prepare her defence, or to be legally represented. If she had done so, she would have been given more time for such purposes. She was asked if she wanted to avail the services of a lawyer but she refused;

- the court advised and helped the applicant understand her rights and the procedure involved;

- everything in the trial was interpreted during the proceedings by qualified translators / interpreters in order to ensure that the defence was not affected and that the accused was fully informed of the charges against her;

- in passing sentence the court took all circumstances of the case into consideration.

Lastly, the Government state that the decision of the Court on admissibility in the Christodoulidou v. Turkey case (op. cit.) related only to complaints under Articles 3 and 11 of the Convention and 1 of Protocol No. 1. Those complaints have no bearing on the general issues and objections raised in the present application since the complaints of Ms Christodoulidou did not relate to the administration of justice in the ‘TRNC’. She was not detained, punished or imprisoned in northern Cyprus.

The applicant adopts the observations submitted by the Cyprus Government, which refute the arguments of the respondent Government with submissions that include the following points:

As regards Article 3 of the Convention:

- the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (op. cit.) are not applicable to the present applicant. Whether the treatment suffered by the applicant in this case violated Article 3, has to be examined and determined in light of the facts of the instant case and on the basis of the evidence provided;

- in view of the Loizidou v. Turkey case ( merits ) (op. cit.) and the Commission’s report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.), the Government are responsible for treatment suffered by the applicant during detention, interrogation and trial;

- the treatment endured by the applicant during her arrest and subsequent imprisonment and trial was of a very severe nature, including physical punishment, exposure to violent and abusive crowds, inhuman and degrading conditions of detention, including sleep deprivation, and humiliating and frightening treatment in court. Whether such treatment is viewed cumulatively or separately, it caused severe physical and psychological suffering, some of which is continuing today. Thus the treatment suffered constituted inhuman and degrading treatment in violation of Article 3 of the Convention.

As regards Article 5 of the Convention:

- during the applicant’s initial arrest and subsequent detention as well as during the detention imposed following the court conviction, the applicant was denied her liberty in circumstances which did not follow a procedure prescribed by law and which was not lawful under Articles 5 § 1 (a) and 5 § 1 (c) of the Convention;

- the failure of the authorities to inform the applicant of the or all the reasons for her arrest and charges against her constitutes a violation of Article 5 § 2.

As regards Article 6 of the Convention:

- this application is an exceptional case where the applicant was denied each and every of the basic fair trial guarantees provided for in the above-mentioned provision. These include inter alia a failure: to inform the applicant promptly in a language that she understood, of the nature and cause of the accusation against her, to provide the applicant with adequate time and facilities to find a lawyer of her own choice and to prepare her defence, to allow the cross-examination of witnesses and provide the applicant with a transcript of the trial, and to provide the applicant with proper interpretation;

- the finding of the Commission in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) that Article 6 of the Convention had been violated in that there was proof beyond reasonable doubt that subjectively the “court” which tried the applicants was neither impartial nor fair, wholly supports the applicant’s case.

As regards Article 7 of the Convention:

- the applicant was falsely tried for offences which did not amount to offences under relevant national or international law, and which in any event failed to meet the standards of foreseeability and accessibility required by the Convention (G. v. France judgment of 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.

As regards Article 11 of the Convention:

- the applicant’s right to demonstrate under Article 11 of the Convention was interfered with in an aggravated and serious manner;

- the acts of the Government were a deliberate and provocative attempt to disrupt a lawful demonstration in an area which was the subject of UN patrols and not within even the claimed jurisdiction of the ‘TRNC’;

- the interference with the applicant’s rights was not prescribed by law and was an excessive and disproportionate response to the peaceful and lawful demonstration. The Government have not identified in their current observations any legitimate aim that they were seeking to serve by committing these assaults upon the applicant.

As regards Article 13 of the Convention:

- no effective remedies are or were at any time available to the applicant in respect of any of her complaints under the Convention; alternatively, the institutions established by the ‘TRNC’ are incapable of constituting effective domestic remedies within the national legal system of Turkey, within the meaning of Article 13 of the Convention.

As regards Article 14 of the Convention in conjunction with Articles 5, 6 and 7:

- the applicant was arrested, beaten and prosecuted by the authorities solely because of her nationality and ethnic origin. This differential treatment was a clear violation of Article 14 of the Convention when read together with Articles 5, 6 and 7.

The Court recalls that the Commission in its report in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) had considered that, because, inter alia, of the overall control exercised by Turkey over the “border zone” the arrest of the applicants in that case and alleged ill-treatment in the “border area” on 19 July 1989 were imputable to Turkey. Further the Court considers that in view of and in accordance with its above-mentioned Loizidou v. Turkey judgment, the alleged violations are imputable to Turkey.

In view of the above-mentioned findings, the Court considers therefore that this part of the application cannot be rejected as incompatible ratione personae or ratione loci with the provisions of the Convention.

The Court considers, in the light of the parties’ submissions, that this part of 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 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. The applicant had initially complained of violations of Articles 1, 9 and 10 of the Convention. However, on 10 November 1999 she informed the Court that she wished to withdraw the complaints in question.

The Court notes this development and considers that respect for human rights as defined in the Convention does not require it to continue the examination of these complaints which, accordingly, no longer form part of the application.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 3, 5, 6, 7, 8, 11, 13 and 14 of the Convention and 1 of Protocol No. 1;

Decides to strike the remainder of the application out of its list of cases.

Vincent Berger Georg R ess Registrar President