FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39970/98 by Thomas G. HADJITHOMAS, Ioulia Y. HADJITHOMA, Paraskevi HADJITHOMA-HAPESHI, Nicos T. HADJITHOMAS, Xanthi ANTONIOU-HADJITHOMA and Thomas, Christoforos , Andreas and Savvas HADJITHOMAS against Turkey

The European Court of Human Rights ( First Section ) sitting on 11 January 2000 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall, Mr J. Jörundsson Mr L. Ferrari Bravo, Mr C. Bîrsan, Mrs W. Thomassen, judges , Mr G. Gölcüklü, ad hoc judge ,

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 February 1998 by Thomas G. HADJITHOMAS, Ioulia Y. HADJITHOMA, Paraskevi HADJITHOMA-HAPESHI, Nicos T. HADJITHOMAS, Xanthi ANTONIOU-HADJITHOMA and Thomas, Christoforos , Andreas and Savvas HADJITHOMAS against Turkey and registered on 20 February 1998 under file no. 39970/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 19 January 1999 and the observations in reply submitted by the applicants on 23 June 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Cypriot national s . The first and second applicants are married. The third and fourth applicants are their children. The fifth applicant is the widow of the first two applicants' third child, George T. Hadjithomas . The remaining applicants are George T. Hadjithomas’s and the fifth applicant’s children. They are represented before the Court by Mr K. Chrysostomides , a lawyer practising in Nicosia.

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

On 13 August 1974, as the Turkish troops were advancing, the first two applicants and their children left Ayios Avrosios in Kyrenia where they lived and where the first applicant owned significant real property including the family house.

On 12 January 1996 the first applicant transferred the ownership of the largest part of this property, including the house, to his three children: the third and fourth applicants and George T. Hadjithomas . Detailed information about this property and the part of the property still owned by the first applicant exists on the file.

In November 1996 George T. Hadjithomas died. He was inherited by the fifth applicant and their children.

The applicants have never returned to Ayios Avrosios because of the division of the island of Cyprus.

They claim that they have been informed that their house in Ayios Avrosios has been destroyed by the Turkish army. The respondent Government deny this.

COMPLAINTS

The applicants complain that their right to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 is violated. They also complain under Article 8 of the Convention that they have lost their home. Finally, they complain that they are subjected to discrimination in the enjoyment of the above-mentioned rights, inter alia , because of their national origin, culture and religion contrary to Article 14 of the Convention.

PROCEDURE

The application was introduced on 2 February 1998 and registered on 20 February 1998.

On 14 April 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

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 President of the Court assigned it to the First Section.

The Government’s written observations were submitted, out of time, on 19 January 1999. On 27 April 1999, the Court (First Section) decided to admit the Government’s observations. The applicant s replied on 23 June 1999, after an extension of the time-limit.

On 4 May 1999 the Court granted the applicant s legal aid.

THE LAW

The applicants complain that their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 and to respect for their home under Article 8 are violated. They also complain that they are subjected to discrimination in the enjoyment of the above-mentioned rights contrary to Article 14 of the Convention.

Article 1 of Protocol No. 1 provides as follows:

“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 or to secure the payment of taxes or other contributions or penalties.”

Article 8 of the Convention provides as follows:

“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 provides as follows:

“The enjoyment of the rights and freedoms set forth in this 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.”

The respondent Government submit that the first applicant lost his title to the property in question after 1974 under Article 159 of the Constitution of the “TRNC” and implementing legislation and administrative acts. They also point out that the second applicant does not claim to own any property in the northern part of Cyprus. The remaining applicants did not have any property in the northern part in 1974. The property in question was purportedly transferred to or inherited by them long after 1974. At no time after 1974 were the applicants prevented by the Turkish authorities from returning to or using their property. As a result, the application is incompatible either ratione materiae or ratione temporis .

Moreover, the Government submit that the application is incompatible ratione personae. The Turkish authorities did not destroy the property in question. Moreover, Turkey has no jurisdiction or control in the northern part of Cyprus as regards the complaints of the applicants. The territory in question is under the jurisdiction and control of the “TRNC”, an independent state, and the acts complained of are not imputable to Turkey. In this connection the respondent Government refer in detail to the history of Cyprus since 1960 emphasising in particular the following:

( i ) the bi -communal character of the 1960 Constitution and the obligation of Cyprus, under international treaty obligations guaranteed by the signatories of the 1960 Treaty of Guarantee to maintain her independence, territorial integrity and the fundamental principles of the Constitution;

(ii) the alleged responsibility of the Greek Cypriot side for the breakdown of the 1960 constitutional arrangements in 1963 and the subsequent changing of basic principles of the Constitution;

(iii) the allegedly intolerable situation of the enclaved Turkish Cypriots in the period between 1964 and 1974, which caused them to set up their own administration as from December 1967;

(iv) the fact that the Turkish intervention in July 1974 was preceded by a coup d'etat of Greek officers of the National Guard who pursued the aim of unification of Cyprus with Greece ( Enosis );

(v) the contention that the Turkish military operation in 1974 was carried out in conformity with Article IV of the Treaty of Guarantee to protect the right of Turkish Cypriots;

(vi) the contention that the subsequent voluntary relocation of both the Turkish Cypriot and the Greek Cypriot communities in separate parts of the island was the result of agreements achieved in inter-communal talks held in Vienna in July/August 1975, these agreements being fully implemented under UN auspices, UN troops moving into the newly established buffer zone;

(vii) the alleged agreement achieved in 1977 and 1979 between the Turkish Cypriot and Greek Cypriot leaders for seeking a federal solution on the basis of a bi -communal and bi-zonal federation, a concept which it is contended is still valid as a basic guideline for the inter-communal talks;

(viii) the contention that the establishment of the “TRNC” as an independent State on 15 November 1983 was declared by the legitimate representative body of the Turkish Cypriots in exercise of their right to self-determination, and that this did not constitute secession as the bi -communal Republic of Cyprus had ceased to function due to the actions of the Greek Cypriot side since 1963;

(ix) the contention that the subsequent development of “TRNC” institutions was legitimate and in line with democratic principles and that it consolidated the statehood of the “TRNC” according to criteria accepted in international law;

(x) the opinion that, despite the fact that it has not been recognised de jure by any other State than Turkey, the “TRNC” exists de facto as an independent State exercising all branches of State power on its territory (in this connection the respondent Government refer to several decisions of English courts recognising that there was “an effective and autonomous administration in the North” and to the fact that Turkey, having recognised the “TRNC” de jure , does not claim for herself to exercise power in that area);

As regards the role of the Turkish forces in northern Cyprus, the respondent Government claim that these forces are there in a peace-keeping function at the request and with the consent of the “TRNC”, that they act under the latter's authority and do not themselves exercise governmental power. It is claimed that their status is not essentially different from that of Greek military forces in southern Cyprus.

In any event, the respondent Government submit that the existence of “jurisdiction” under Article 1 of the Convention does not create an irrefutable presumption of control and responsibility, as it is indicated in the Commission’s Report of 8 July 1993 in Chrysostomos and Papachrysostomou v. Turkey (D.R. 86-A, p. 4). According to the Government, this opinion remains controlling notwithstanding the Court's Loizidou v. Turkey judgment of 18 December 1996 (Eur. Court HR, Reports of Judgments and Decisions 1996-VI, p. 2216). Turkey can neither legislate in respect of matters of property in the northern part of Cyprus, nor can she exercise any control over such property. Moreover, Turkey cannot compel the authorities of the “TRNC” to allow any Greek Cypriot to return to his or her property. In the present case there is no question that can be related to the Turkish intervention of 1974. Furthermore, the acts of the “TRNC” expropriating the properties referred to by the applicants in the application constitute novus actus interveniens . Because of these acts Turkey cannot be held responsible.

Elaborating on the latter points, the respondent Government submit that, apart from the constitutional and legal provisions examined by the Court in Loizidou v. Turkey, there are actual acts of state by the “TRNC” expropriating the properties referred to by the applicants in their application. In this connection the respondent Government provide a detailed account of the legal framework that permitted the expropriation of properties such as those claimed by the applicants. The respondent Government argue that it would be unrealistic not to give any effects to the acts of the authorities in the northern part of Cyprus. A number of courts in Council of Europe countries have given legal effect to acts of unrecognised governments. Moreover, the Commission in its above-mentioned report in Chrysostomos and Papachrysostomou v. Turkey found that certain legal acts emanating from the “TRNC” had to be assumed to be legally valid acts under the Convention.

Even assuming that a question could arise under Article 1 of Protocol No. 1 the Government argue that the interference with the applicants’ property rights can be justified under this provision. The properties claimed by the applicants have been expropriated in accordance with the laws of the “TRNC”. The respondent Government contend that it would be paradoxical and unfair not to take the local laws into consideration but find Turkey responsible for acts of state of the Turkish Cypriot authorities.

The respondent Government further submit that, due to the relocation of the populations, it was necessary to facilitate the rehabilitation of Turkish Cypriot refugees and look after and put to better use abandoned Greek Cypriot property. The Greek Cypriot side took similar measures in respect of abandoned Turkish Cypriot properties in the southern part of the island. Due to the agreed principles of bi-zonality and bi -communality, property rights and the question of reciprocal compensation had to regulated. The exercise of such rights had to be restricted or limited. There is a public interest in seeing to it that the inter-communal talks concerning freedom of movement, settlement and the right to property are not undermined. The status of the UN buffer zone also renders it necessary to regulate the right of access to possessions until a settlement of the political problem is achieved. In the light of all the above, it would be unrealistic to recognise for individual applicants the right of access to property and consequent property rights in isolation of the political situation.

As regards the applicants’ complaint under Article 14 of the Convention, the Government submit that the differentiation that has come about in the exercise of the freedom of movement and residence and the right to property of the two communities is a consequence of the political situation in the island, i.e. the existence of two governments that form the basis of a bi-zonal , bi -communal federal system. Such a situation cannot be an issue of discrimination under Article 14 of the Convention but is entirely a matter for the two communities.

The applicants note that the Government have not sought to rely on the terms of their declaration of 21 November 1995 under former Article 25 of the Convention. Nor have they raised an objection concerning the issue of exhaustion of domestic remedies.

As regards the respondent Government’s argument that the alleged violations are not imputable to them but to the “TRNC”, the applicants submit that this submission is untenable in the light of the Court’s decision in Loizidou v. Turkey. In the applicants’ view, their case cannot be distinguished from Loizidou v. Turkey on any of the grounds raised by the respondent Government. The effect of the Court’s decision in the above case is that it is not necessary for the applicants to show that, since the date of Turkeys’ declaration under former Article 25 of the Convention, they attempted to cross the buffer zone to gain access to his property. Moreover, the Court in Loizidou v. Turkey did not hold that there must have been a violation that could be traced to 1974 in order to establish that there was a violation imputable to Turkey. Furthermore, once it is established that Turkey is responsible for the acts of the “TRNC” concerning the applicants’ property, these acts cannot be regarded as novus actus interveniens . In reaching its conclusions in Loizidou v. Turkey the Court took into consideration the Commission’s findings in Chrysostomos and Papachrysostomou v. Turkey. There is no inconsistency between the two cases, given that the Commission’s report in Chrysostomos and Papachrysostomou v. Turkey refers to the imputability of certain specific actions of the “TRNC authorities” to Turkey.

In the applicants’ view, what the respondent Government are seeking to do is to reverse the Court’s judgment in Loizidou v. Turkey. However, the “TRNC” has not been recognised by any State. Its creation has been declared illegal by the Security Council and the Council of Europe, the European Union and the Commonwealth have all taken a similar stance. The “ TRNC”’s claim to statehood has been rejected by English and United States courts. The domestic court decisions that the Government have submitted in support of their argument concerning the acts of unrecognised governments have to be distinguished, since none of them concerns an administration that has been established in defiance of Security Council resolutions and has attracted no international acceptance. The citation is selective. A decision of the European Court of Justice refusing to recognise phytosanitary certificates issued by the “TRNC” is omitted. The acts mentioned by the International Court of Justice in its Namibia opinion were everyday acts of routine administration or possessed a humanitarian character. In any event, even if it were accepted that some effect could be given to the acts of the “TRNC” as a de facto administration, this would not mean that these acts could not be imputable to Turkey. The arguments drawn from the status of the buffer zone and the bi -communal talks have no bearing on the issue.

As regards the Government’s submissions that the application is incompatible ratione materiae or temporis , the applicants observe that the respondent Government do not deny that the first applicant was the lawful owner of the property in question in 1974. Subsequent acts of the “TRNC” could not deprive him of him title, as held by the Court in Loizidou v. Turkey. The second applicant being the first applicant’s wife has a proprietary interest in the property in question. The remaining applicant acquired their property lawfully directly or indirectly from the first applicant.

The applicants, in order to establish that there was a violation of their rights under Article 1 of Protocol No. 1 after the date when they acquired the property in question, are not required to show that there was a violation of their rights before that date, as the Government are arguing; it is sufficient that the applicants show that they are not allowed to enjoy their property since the date of acquisition. As a result, the applicant are victims of a continuing violation of their rights under Article 1 of Protocol No. 1. There is also a continuing interference with the applicants’ right to respect for their home under Article 8 of the Convention.

Moreover, the applicants argue 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 applicants’ property rights. This conclusion is reinforced by the existence of evidence that much of the property taken from Greek Cypriot 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.

The applicants also argue that there has been an interference with their right to respect for their home. The first four applicants had their home in the northern part of Cyprus before 1974 and the remaining applicants are the heirs of someone who had his home there. According to the logic of Loizidou v. Turkey there can be no justification for the interference in question under Article 8 § 2 of the Convention.

Finally, the applicants argue that their human rights are violated solely because they are Greek Cypriots. To argue that this is due to the separation between the two communities, as the Government do, would justify any discrimination between Turkish and Greek Cypriots. 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 case (Applications Nos. 6780/74 and 6950/75 Cyprus v. Turkey, Comm. Report, 10.7.76, unpublished).

The Court will first examine the respondent Government’s 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 that

“( 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 notes that, as opposed to the applicant in Loizidou v. Turkey, some of the present applicants were not the registered owners of the properties in question in 1974 and never tried to cross the buffer zone. However, these factors notwithstanding, the Court considers that, insofar as the issue of “jurisdiction” under Article 1 of the Convention is concerned, the applicants’ situation is not materially different from that of the applicant in Loizidou v. Turkey, since the present applicants claim either to have had their home or to be the owners of properties in the northern part of Cyprus and Turkey’s obligation to secure to the applicants 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 further notes that the Government argue that the application is incompatible ratione materiae because the applicants never acquired title to the properties concerned or lost their title. They also claim that the application is incompatible ratione temporis because there is no question of a continuing violation that could have subsisted until 28 January 1987 when Turkey recognised the right of individual petition. The Court considers that these arguments are closely linked with the substance of the applicants’ complaints. As a result, they have to be examined together with the merits.

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.

Michael O’Boyle Elisabeth Palm Registrar President