THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18364/91 by Andreas IOANNOU against Turkey

The European Court of Human Rights ( Third Section ), sitting on 28 March 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. Kūris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges , Mr F. Gölcüklü, a d hoc judge , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 June 1991 and registered on 14 June 1991,

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 Commission’s decision of 29 November 1993 to communicate de application,

Having regard to the observations submitted by the respondent Government on 30 April 1998 and the observations in reply submitted by the applicant on 18 August 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Cypriot citizen born in 1935 and residing in Nicosia. Before the Court he is represented by Mr. Kypros Chrysostomides a lawyer practicing in Nicosia.

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

The applicant was born and grew up in Ayios Amvrosios , a village in the District of Kyreneia . In 1973 he moved his residence to Kyreneia . During the military invasion of July 1974, Turkish troops evicted the applicant and his family from his home and forced them to leave Kyreneia and flee to the south. Since 1974 both the town of Kyreneia and Ayios Amvrosios village are under Turkish military occupation.

The applicant left behind the following real property of which he claims to be the owner:

(a) Kyrenia , Klepini , Boumbourka , Field with trees (Sheet/Plan 13/33, Plot 72, Area: Dec. 2, 784m 2 , Share: Whole).

(b) Kyrenia , Pano Kyrenia , House with yard (ground floor), No. 7, Demosthenous Street, (Sheet/Plan 12/20, Plot 34, Area: 785m 2 , Share: Whole). This property was his permanent residence and that of his family, where his wife Sophia Andreou Ioannou , Michael Michael , Christina Michael, and himself, lived.

(c) Kyrenia , Ayios Epiktitos , Karamanou Quarter, Field with trees (Sheet/Plan 12/32, Plot 235, Area: 539m 2 , Share: Whole).

(d) Kyrenia , Ayios Amvrosios , Alakati tou Platymati , Field with trees (Sheet/Plan 13/19, Plot 220/2, Area: Dec. 7, 78m 2 , Share: Whole).

(e) Kyrenia , Ayios Amvrosios , Vasilion , Field with trees (Sheet/Plan 13/20, Plot 63, Area: Dec. 3, 365m 2 , Share: Whole).

(f) Kyrenia , Ayios Amvrosios , Vasilion , Field with trees (Sheet/Plan 13/20, Plot 130, Area: Dec. 3, 301 m 2 , Share: Whole).

(g) Kyrenia , Ayios Amvrosios , Vasilion , Field with trees (Sheet/Plan 13/20, Plot 151, Area: 365m 2 , Share: Whole).

(h) Kyrenia , Ayios Amvrosios , Platanos , Garden and cultivated field (Sheet/Plan 13/22, Plot 524, Area: 55m 2 , Share: Whole).

( i ) Kyrenia , Ayios Amvrosios , Vrysi tou Potamou , Running water (Sheet/Plan 13/22, Plot 608/1, Share: Whole).

(j) Kyrenia , Ayios Amvrosios , Mangou , Field with trees (Sheet/Plan 13/31, Plot 34, Area: Dec. 3, 819m 2 , Share: Whole).

Since the 1974 invasion and the ensuing Turkish military occupation, the applicant has purportedly been deprived of access to and the use of his property. He has not been to his home and has been prevented from enjoying his home town and from moving and living freely with his family and the Kyrenian people. The applicant participated in various peaceful demonstrations and marches towards his village. On all occasions he was prevented from walking home by the Turkish troops.

On 9 December 1990 the applicant made one further attempt to return to his home and property in Kyrenia and Ayios Amvrosios by participating in a convoy of cars of fellow refugees who intended to return home by way of a peaceful march towards their villages.

The applicant and his fellow refugees, who had notified their intention to the Commander of the United Nations forces in Cyprus, arrived at the check point in the "buffer zone", on the main road which links Nicosia with Ayios Amvrosios   and Kyrenia . There, the applicant and other refugees stopped and asked the United Nations Force officer on duty to be allowed to return to their homes, property and villages. They requested that same officer to notify the Turkish military authorities of their request to return to their homes. The officer told the applicant and his fellow demonstrators of the Turkish military authorities’ refusal.

COMPLAINTS

The applicant complains of a violation of Articles 8 of the Convention and 1 of Protocol No. 1. He states that since the invasion of the northern part of Cyprus in July 1974 and since 29 January 1987, when Turkey accepted the competence of the European Commission of Human Rights to examine individual petitions against it, and on 9 December 1990, when the applicant was prevented from returning to his home and property, Turkey has prevented him from exercising his right to respect for his home and to the peaceful enjoyment of his possessions. He also complains that he is subjected to discrimination in the enjoyment of the above-mentioned rights in breach of Article 14 of the Convention.

PROCEDURE

The application was introduced on 7 June 1991 and registered on 14 June1991.

On 29 November 1993 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 30 April 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 18 August 1998, also after an extension of the time-limit.

On 9 April 1994 the Court granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that his rights to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 and to respect for his home under Article 8 of the Convention are violated. He also complains that he is subjected to discrimination in the enjoyment of the above-mentioned rights contrary to Article 14 of the Convention.

Article 8 of the Convention ensures respect for private and family life, home and correspondence. Article 14 prohibits any discrimination in the enjoyment of the rights and freedoms set forth in the Convention. Article 1 of Protocol No. 1 guarantees property rights.

The Government submit that the applicant has produced no evidence to show that at the time of the Turkish intervention in 1974 he was actually the owner of immovable property either in Kyrenia or in Ayios Amvrosios . The documents produced in support of his application were obtained from the Greek Cypriot Land Authority on 7 November 1992, upon the applicant’s own application and information supplied by him. These documents do not show title to land on the material time. Moreover, the applicant had not applied through the proper channels to visit his alleged properties. He did not even attempt to enter the northern part of Cyprus at an approved crossing point, and was not prevented from so doing by Turkish Cypriot or Turkish forces at the UN controlled buffer zone in between the cease-fire lines of the two sides. He was stopped on the southern side of the buffer zone by UNFICYP, in the vicinity of the Greek Cypriot cease-fire line. The Turkish forces were not in any way involved in the incident.

It is clear that the scenario staged by the applicant and others at Mia Milia on 9 December 1990 was contrary to the undertakings of the two sides relating to the status of the UN buffer zone, and constituted a violation of that status, so closely maintained by UNFICYP in order to keep the peace on the island.

The alleged violations of Articles 8 of the Convention and 1 of Protocol No. 1 are not imputable to Turkey, mainly due to novus actus interveniens , attributable to the Turkish Federated State of Cyprus and its successor, the Turkish Republic of Northern Cyprus (“TRNC”). The applicant knew that access to the north by such means was impossible and that the Turkish Cypriot authorities had expropriated his property in Northern Cyprus. It follows that the applicant cannot invoke in any way Turkey’s responsibility. According to the laws of the “TRNC” and the administrative acts of its authorities, the applicant is no longer owner of the disputed properties, which are either owned by the “TRNC” by virtue of the provisions of Article 159 of the Constitution or by Turkish Cypriot refugees who left their own properties in the southern part of Cyprus.

Peaceful enjoyment of possessions is one of the issues to be settled within the framework of talks between the Greek Cypriot and Turkish Cypriot side. The 1977 and 1979 high-level agreements, as well as UN Security Council resolutions 649(1990) and 744(1992) confirmed that a federal solution sought by the two sides will be “ bi -communal” and “ bi-zonal ”. In addition, the question of compensation cannot be settled by individual applications to the Court but within the framework of intercommunal talks.

As regards the alleged violation of Article 1 of Protocol No. 1, it was necessary, due to the relocation of populations, to facilitate the re- habilitation of Turkish Cypriot refugees and put into better use the abandoned Greek Cypriot properties. Deprivation of and/or extensive control of the use of property has been necessary in the public interest, also because Turkish Cypriots left their property in the South with the intention of never going back. Moreover, due to the agreed principles of bi -communality and bi-zonality , property rights and reciprocal compensation had to be regulated and the exercise thereof restricted.

In conclusion and in view of the political situation in the island and the separation of the two conflicting communities into two sectors, with the UN buffer zone in between the cease-fire lines of the two sides, it would be highly unrealistic to recognise for individual applicants the right of access to property and consequent property rights in isolation of the political situation. Otherwise, the inter-communal negotiation process may be strained to the point of collapse, with the risk of turmoil on the island.

The applicant maintains that the evidence which he has already submitted is conclusive as to his rights of ownership of the properties involved and his absolute title thereon. Certainly the old records captured in Kyeneia relating to land registration would confirm his ownership, provided they are produced unaltered to the Court by the respondent Government. The applicant’s proprietary interest continued uninterrupted after Turkey accepted the competence of the European Commission of Human Rights to receive individual petitions in 1987.

The applicant submits that the respondent Government solely relies upon arguments which the Court has already rejected in the case of Loizidou v. Turkey, which is similar to the present application. What is at issue in the present case is not the freedom of movement across the buffer zone on a particular occasion but the entire framework of acts by which owners of property in northern Cyprus, such as the applicant, have been deprived of their property. It was the presence of the Turkish forces in northern Cyprus which have prevented him since July 1974, and not just on 9 December 1990, from having access to his property. The Vienna Agreement mentioned by the respondent was nothing but a humanitarian arrangement under the auspices of the UN. It was neither an “agreement of exchange of populations” nor did it “settle the matter of refugees”. The applicant has never abandoned his claim to return to his home and properties.

As to the buffer zone regime, it has no bearing upon either the imputability of the interference to Turkey or whether that interference is compatible with the Convention.

In the Loizidou case the Court decided that not only the jurisdiction of Turkey extended to northern Cyprus, but that Turkey is also responsible for the policies and actions of the “TRNC” regarding the taking of property. Given the effect of the Court’s decision in that case, it is not necessary for the applicant to show that he has attempted to cross the buffer zone in order to gain access to the properties and has been prevented from doing so by forces on the Turkish side. It is enough that his property rights have been interfered with by the “TRNC”. The argument that the “TRNC” authorities have expropriated the applicant’s properties in northern Cyprus is an admission that there has been an interference with his rights. Once it is established that Turkey is responsible for executive acts performed by the “TRNC” in implementing Article 159 of the “TRNC” Constitution and subsequent legislation - as the Court held in the Loizidou case - these acts cannot constitute novus actus interveniens , because such an act must be performed by an independent actor for whose acts the respondent is not responsible in international law. The imputability to Turkey of “TRNC” policies and acts regarding Greek Cypriot property has been the subject of an authoritative decision of the Court. Considerations of consistency and respect for the principle of res judicata preclude re-examination of the very same question in a case which cannot be distinguished in any material way.

The respondent’s argument that the “TRNC” is really an independent State or, at least, a de facto administration whose acts should be given effect, has been put before the Court on a number of occasions and has always been rejected. Moreover, none of the decisions of international courts on de facto administrations suggests that such a court should give effect to the seizure of property by an administration established in defiance of Security Council resolutions, and which has attracted no international acceptance whatsoever. Finally, as the Court has held in the Loizidou case (judgment of 28 July 1998 (Article 50) § 26), the fact that bi -communal talks are taking place is not a reason for the Court not to deal with the violations of individual rights which are put before it.

The applicant argues that the interference with his property rights cannot be justified under Article 1 of Protocol No. 1. The policies of the “TRNC” cannot furnish a legitimate aim since the establishment of the “TRNC” was an illegitimate act condemned by the Security Council ex iniuria ius non oritur . For the same reason, the interference cannot be found to be in accordance with the law and the general principles of international law. Nor was the interference proportionate. As the Court held in Loizidou v. Turkey, the need to re-house displaced Turkish Cypriots cannot justify the complete negation of the applicant’s property rights. This conclusion is reinforced by the existence of evidence that much of the property taken from Greek Cypriots has been used to house settlers from mainland Turkey. The Court also held in Loizidou v. Turkey that the fact that property rights were one of the subjects under discussion in the inter-communal talks, could not justify the taking of property without any compensation.

As regards Article 8 of the Convention, the applicant submits that, contrary to the applicant in the Loizidou case, himself, his wife (the applicant in application n° 18360/91) and his daughter and son (the applicants in application n° 18361/91) had their principal residence in the town of Kyreneia . He claims to be a displaced person under Article 8 of the Convention, as those described by the European Commission of Human Rights in its reports in the inter-state applications of Cyprus against Turkey. He points out that, as the respondent does not include in its observations any arguments as to the justification of the interference under that Article, it admits the lack of any legal justification whatsoever.

Finally, the applicant argues that his human rights are violated solely because he is Greek Cypriot. The laws of the “TRNC” discriminate against Greek Cypriots and the Commission has found a violation on this basis in the first and second inter-State cases.

The Court will first examine the respondent Government’s implicit submission that the application is incompatible ratione personae . The Court recalls in this connection that in its Loizidou v. Turkey judgment of 18 December 1996 it found as follows:

“( i )t is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’. Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus” ( op. cit ., pp. 2235-2236, § 56).

The Court thus considers that, insofar as the issue of “jurisdiction” under Article 1 of the Convention is concerned, the applicant’ situation is not materially different from that of the applicant in Loizidou v. Turkey, since the present applicant claims to have had his home and to be the owner of properties in the northern part of Cyprus, and Turkey’s obligation to secure to the applicant the rights and freedoms set out in the Convention extends to that part of the island. It follows that the application cannot be rejected as incompatible ratione personae.

The Court also notes that the complaint under Article 14 of the Convention was raised for the first time in the applicant’s observations of 19 August 1998. However, as it is closely linked with the alleged continuous violation of Articles 8 of the Convention and 1 of Protocol No. 1, the Court considers that it cannot be declared inadmissible.

Having examined the parties' remaining observations, the Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé N. Bratza Registrar President