SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46159/99 by ROCK RUBY HOTELS LTD against Turkey

The European Court of Human Rights, sitting on 28 May 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 Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 25 January 1999 and registered on 15 February 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 company is incorporated under Cypriot law. Its headquarters are in Kyrenia. It is owned by Mr Agathoklis Neokleous , a Greek Cypriot, Mrs Erato Neokleous-Goodbody , a British national of Greek-Cypriot origin, and Mrs Maria Neokleous-Deutschmann , a German national of Greek-Cypriot origin. Its directors are Mr Agathoklis Neokleous and Mrs Anastasia Neokleous , an American citizen of Greek-Cypriot origin. The applicant company 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.

In 1972 the applicant company acquired the Rock Ruby Hotel in Conon street in Kyrenia , northern Cyprus. In July 1974 the shareholders of the company and members of the board of directors along with most of the hotel’s guests were evacuated by a British helicopter-carrier from Kyrenia . Since then they cannot return and enjoy their property. According to certain information, the hotel is used by Turkish armed forces.

COMPLAINTS

The applicant company complains that the right to the peaceful enjoyment of its possessions guaranteed by Article 1 of Protocol No. 1 has been and continues to be violated when Turkish forces obliged its managers and shareholders to leave the Rock Ruby Hotel in July 1974 and have not permitted the applicant company to return since. It also invokes Article 14 of the Convention in that its property rights were violated because it is a Cypriot company whose management and shareholders are either of Greek ‑ Cypriot origin or observe the Greek Orthodox religion.

THE LAW

The applicant company complains of a violation of its right to the peaceful enjoyment of possessions, contrary to Article 1 of Protocol No. 1, and of discrimination, contrary to Article 14 of the Convention, which Articles provide insofar as relevant as follows:

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 ... .”

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 ... religion, ... national or social origin, association with a national minority, property, birth or other status.”

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 Turkish Republic of Northern Cyprus (the “TRNC”) which, along with its predecessor, the Turkish Federated State of Cyprus, lawfully expropriated the applicant’s 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 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; and

- 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 and therefore, implicitly, is not to be followed.

The applicant company 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. The applicant company claims to be in the same situation as Mrs Loizidou and other applicants whose cases the Court has declared admissible (cf. for example Ioannou v. Turkey , no. 18364/91, decision 28.03.00, and Hapeshis and Hapeshi-Michaelidou v. Turkey, no. 35214/97, decision 08.02.00).

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 (ibid. §§ 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 that 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.

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 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 the application admissible, without prejudging the merits of the case.

S. Dollé J.P. Costa Registrar President