SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43685/98 by Iordanis IORDANOU against Turkey

The European Court of Human Rights, sitting on 25 June 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr M. Ugrekhelidze , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 September 1998 and registered on 1 October 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Cypriot national of Greek Cypriot origin. He was born in 1923 and lives in Aglantzia, Nicosia, southern Cyprus . He is represented before the Court by Mr A. Demetriades , a lawyer practising in Nicosia.

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

The applicant states that he was born in Karavas , a village on the coast in the Kyrenia district of northern Cyprus. On the death of his father, he inherited the house in which he had lived throughout his childhood, but when he married in 1963 he moved to a house nearby which he had purchased. He also owned 9 plots of land, three of which were lemon groves, with olive and carob trees growing on two others.

Upon the 1974 Turkish intervention, the applicant left with his wife and two children for Limassol , southern Cyprus. He claims that he was deprived of his property rights, all his property being located in the area which is under the occupation and the control of the Turkish military authorities. The latter prevent him from having access to and from using and possessing his houses and property.

COMPLAINTS

The applicant alleges that he suffers continuous violations of Article 8 of the Convention in respect of the home where he had lived with his wife and children, and Article 1 of Protocol No. 1 in respect of all his property in Karavas .

THE LAW

The applicant complains of a violation of his right to respect for his home, contrary to Article 8 of the Convention, and his right to the peaceful enjoyment of possessions, contrary to Article 1 of Protocol No. 1, which Articles provide insofar as relevant 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 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 which include the following points:

- they are not responsible for matters in northern Cyprus which fall within the exclusive control of the wholly independent and democratic “TRNC” which, along with its predecessor, the Turkish Federated State of Cyprus, lawfully expropriated certain property;

- the applicant’s property claim can only be resolved within the framework of the island’s inter-communal talks and a bi-zonal settlement;

- the case is anyway outside the Government’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, as well as being out of time in relation to the six months rule laid down in Article 35 § 1 of the Convention, in the absence of a continuing situation;

- the notion of “home” within the meaning of Article 8 of the Convention does not “cover an area of a State where one has grown up and where the family has roots but where one no longer lives” ( judgment of 18 December 1996 in Loizidou v. Turkey ( merits ), Reports of Judgments and Decisions 1996 ‑ VI, § 66); and

- the Court’s judgment of 18 December 1996 in the aforementioned Loizidou case ignores developments in Cyprus since 1974 and therefore, implicitly, is not to be followed.

The applicant refutes 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 Report of 4 June 1999 in the inter ‑ State case of Cyprus v. Turkey no. 25781/94. He also considers that his Article 8 claim may be clearly distinguished on the facts from that rejected by the Court in the Loizidou case.

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 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 applicant’s Convention claims could have on the 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 ([GC], no. 25781/94, §§ 69, 75-81,173-175 and 184-189, to be published in ECHR 2001).

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 applicant’s claim about his second house does not fall within the notion of “home” under Article 8 of the Convention, the Court notes that the applicant had purchased and moved into this property with his wife, where they raised two children prior to being obliged to leave in 1974. This house therefore constituted a “home” for the purposes of Article 8 § 1 of the Convention. Consequently, the present case is distinguishable from that of Mrs Loizidou where only land and initial construction works were at issue (cf. the aforementioned Loizidou judgment , §§ 65-66). The Court also finds that the continuing impossibility for the applicant to return to his home constitutes an interference with his Article 8 right. The Court therefore rejects the Government’s contention to the contrary.

However, whether the interference with the applicant’s right to respect for his home and with his other property rights was justified is a question which the Court considers 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 application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa              Deputy Registrar President