SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46755/99 by Anthousa P. P. 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 on 17 December 1998 and registered on 13 March 1999,

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 citizen of Cyprus, of Greek-Cypriot origin, who was born in 1934 and lives in Aglantzia, Nicosia, southern Cyprus. The applicant is represented before the Court by Mr J. Erotocritou , a lawyer practising in Nicosia.

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

The applicant lived in her family home in Lapithos (the biggest village in the Kyrenia district of northern Cyprus) until 1963, when she married and moved to her husband’s house in a neighbouring village. Her mother came from Sysklipos , another village near Lapithos , where she owned land. The applicant claims to have acquired the ownership of the family property in the two villages, as well as a right to draw a certain amount of water from a spring in Sysklipos . (The Government challenge the applicant’s property claims, particularly as regards the property which she had specified in Sysklipos , as they had evidence that it had belonged to other persons. The applicant replies that those other persons were her parents who had donated this property to her.) On 27 November 1973 she had applied to the Kyrenia Land Registry Office for a permit to divide one of her plots of land in Lapithos into sixteen building sites, which would have significantly increased its value.

However, this planning procedure was not completed because, with the 1974 Turkish intervention in Cyprus, the applicant and her family had to leave all their property and possessions and move to Limassol in southern Cyprus. She claims that she was thereby deprived of her property rights, all her property being located in the area which was and still is under the occupation and control of the Turkish military authorities. The latter prevent her from having access to and using her property.

COMPLAINT

The applicant alleges that she suffers a continuous violation of Article 8 of the Convention and Article 1 of Protocol No. 1.

THE LAW

The applicant complains of a violation of her right to respect for her home, contrary to Article 8 of the Convention, and her 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 submitted observations in the name of the Turkish Republic of Northern Cyprus (the “TRNC”), which the Court takes to be the respondent’s own observations for the reasons set out below. They 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;

- however, there is no evidence whatsoever of the applicant’s ownership of property, particularly regarding the land in Sysklipos , which anyway consists of fields which cannot be characterised as “home” within the meaning of Article 8 of the Convention; moreover, her claim cannot be entertained as she no longer lives in the area in question;

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

- the situation regarding the applicant’s present inability to have access to property in northern Cyprus is the inevitable consequence of the political state of affairs on the island and the existence of the inviolable United Nations Buffer Zone; until there is an overall settlement of the Cyprus problem, Convention rights are, of necessity, restricted in the interests of security, public safety, the prevention of disorder and the protection of the rights and freedoms of others, within the meaning of the Article 8 § 2 of the Convention, as well as in the general interest envisaged by Article 1 of Protocol No. 1;

- the applicant’s complaint essentially concerns freedom of movement under Article 2 of Protocol No. 4, an instrument which has not been ratified by the respondent Government;

- 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 Court’s judgment of 18 December 1996 in Loizidou v. Turkey ( merits ) (Reports of Judgments and Decisions 1996-VI) ignores developments in Cyprus since 1974, was not based on the factual evidence which is available nowadays and, therefore, does not constitute a suitable precedent to be followed in the instant case;

- in sum the present application should be declared inadmissible as being incompatible ratione personae, ratione temporis or ratione materiae with the provisions of the Convention, or as being manifestly ill-founded.

The applicant refutes these submissions.

The Court refers to its rejection 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 dismissed 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 characterisation of the applicant’s claim as being limited to freedom of movement (§§ 59-61), as well as 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 and considers accordingly that the observations submitted in the name of the “TRNC” may be deemed to be those of the respondent Government (c.f. the above-mentioned Loizidou v Turkey judgment ( preliminary objections ), §§ 51 ‑ 52). Accordingly, it rejects the Government’s aforementioned objections to the admissibility of the application.

As to the Government’s challenge to the factual basis of the case, the Court considers that this is a matter to be examined on the merits of the application insofar as the claim is placed under Article 1 of Protocol No. 1. However, the applicant cannot claim to be a victim of a violation of Article 8 (home) of the Convention in respect of land or a house in which she has not lived since 1963 (cf. the aforementioned Loizidou judgment , §§ 65-66). The Court therefore finds no evidence of an interference with the applicant’s rights under Article 8 and this aspect of the case must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court considers, in the light of the parties’ submissions, that the remainder 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 case 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 admissible the applicant’s complaint under Article 1 of Protocol No. 1, without prejudging the merits.

Declares inadmissible the remainder of the application.

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