THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16085/90 by Lella CHRISTODOULIDOU against Turkey

The European Court of Human Rights ( Third Section ) sitting on 7 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. Kūris, Mr W. Fuhrmann, Mr K. Traja, judges , Mr F. Gölcüklü, ad hoc judge,

and Mrs S. Dollé, 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 12 January 1990 by Lella Christodoulidou against Turkey and registered on 26 January 1990 under file no. 16085/90;

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

Having regard to the observations submitted by the respondent Government on 30 November 1994, 27 April 1998 and 12 May 1999 and the observations in reply submitted by the applicant on 4 January 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot national, born in 1927 and living in Nicosia.

She is represented before the Court by Mr L. Clerides and Mr Ch. Clerides , both lawyers practising in Nicosia.

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

On 19 July 1989 the applicant took part, together with the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases, in an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia. The aim of the demonstrators was to cross the buffer zone into the northern part of Cyprus. In the course of the demonstration the applicant was allegedly beaten by Turkish soldiers and other personnel acting under Turkish control. The beatings were inflicted with electric batons and sticks while the applicant was sitting down. She was subsequently taken to Nicosia General Hospital, where her right leg was stitched.

Since 1974 the applicant is prevented from returning to the house where she used to live and which is situated at No. 33, 28 th October street, Kyrenia , in the northern part of Cyprus. She is also prevented from enjoying her property in the northern part, which consists of the above-mentioned house, its courtyard, a garden at Kazafani ( Lakanes ), and three fields with trees at Karmi ( Homatovunos and Horteri ), all in the Kyrenia District.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that on 19 July 1989 she was subjected to inhuman and degrading treatment by military and paramilitary personnel, for the actions of whom the respondent Government bears responsibility. She also avers, under Article 11 of the Convention, that the overall behaviour of the personnel in question on that date amounted to a violation of her right to peaceful assembly.

2. She also complains under Article 1 of Protocol No. 1 and Article 14 of the Convention of her inability to enjoy her property in the northern part of Cyprus.

3. On 10 November 1999 the applicant informed the Court that she wished to withdraw the complaints she had originally made under Articles 1 and 10 of the Convention.

PROCEDURE

The application was introduced on 12 January 1990 and registered on 26 January 1990.

On 16 October 1991 the European Commission of Human Rights decided to adjourn the examination of the application.

On 29 November 1993 the Commission decided to communicate the application to the respondent Government without asking for observations. It also decided to request the Committee of Ministers to allow it to communicate its Article 31 Report in the case of Chrysostomos and Papachrysostomou v. Turkey (Comm. Report, 8.7.93, D.R. 86, p. 4) to the applicant on a strictly confidential basis.

On 3 February 1994 the Ministers’ Deputies acceded to the Commission’s request.

On 5 March 1994 the Commission decided to request the Government to submit observations on the admissibility and merits of the application.

The Government’s written observations were submitted on 30 November 1994. The Government contended that the Commission should either declare the application inadmissible or adjourn its examination pending delivery of the Court’s judgment in the case of Loizidou v. Turkey.

On 7 March 1995 the applicant requested the Commission to grant her an extension until 30 April 1995 for the submission of her observations in reply. The President of the Commission acceded to her request. On 19 April 1995 the applicant requested a further extension until after the delivery of the Court’s judgment on the merits of the case of Loizidou v. Turkey. On 20 May 1995 the Commission acceded to her request.

On 23 January 1997 the Commission decided to request the Government to submit supplementary observations in the light of the Court’s Loizidou v. Turkey judgment of 18 December 1996 ( Reports of Judgments and Decisions 1996-VI, p. 2216).

On 2 April 1997 the Government requested the Commission to adjourn the proceedings until the Court had completed its consideration of the case of Loizidou v. Turkey.

On 18 April 1997 the Commission noted that, although the applicant complained, inter alia , about continued interference with her right to enjoy her property in the northern part of Cyprus, she had not identified the property concerned. It, therefore, decided to request the applicant to provide further information on this aspect of the case and, pending receipt of this information, to suspend its request for the submission of supplementary observations by the Government.

On 3 January 1998 the applicant submitted information on her property in the northern part of Cyprus. On 9 March 1998 the applicant submitted, at the request of the Secretary to the Commission, an English translation of the relevant title deeds.

On 17 March 1998 this information was transmitted to the Government, who were invited to submit the supplementary observations requested on 23 January 1997.

On 30 March 1998 and 9 April 1998 the Government applied for an extension of the relevant time-limit. The President of the Commission acceded to their requests.

On 27 April 1998 the Government submitted their supplementary observations. These were transmitted to the applicant who was invited to submit observations in reply.

On 22 September 1998 the applicant applied for an extension of the relevant time-limit. The President of the Commission acceded to her request.

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 the case to the Third Section.

On 5 November 1998 the applicant applied for a further extension, which was granted by the President of the Third Section.

On 4 January 1999 the applicant submitted observations in reply.

On 12 May 1999 the Government submitted additional observations. These were transmitted to the applicant. The parties were informed that it would be for the Court to decide whether it should take them into consideration or not.

On 3 August 1999 the Registrar of the Section, reacting to a request by the applicant, informed her that she could submit any comments she might have to make on the Government’s observations of 12 May 1999 before 13 September 1999.

On 10 September 1999 the applicant objected to these observations being taken into consideration by the Court.

On 10 November 1999 the applicant informed the Court that she wished to withdraw her original complaints under Articles 1and 10 of the Convention.

On 7 December 1999 the Court (Third Section) decided to take the Government’s additional observations of 12 May 1999 into consideration.

THE LAW

1. The applicant complains under Articles 3 and 11 of the Convention that on 19 July 1989 she was subjected to inhuman and degrading treatment and her right to peaceful assembly was violated.

Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 11 of the Convention provides as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Government submit that this part of the application should be determined on the basis of the findings in the Chrysostomos and Papachrysostomou v. Turkey case. In their view, it is incompatible ratione personae and, in any case, inadmissible.

The Court recalls that the Commission in its report in the Chrysostomos and Papachrysostomou v. Turkey case ( op. cit. ) had considered that, because, inter alia, of the overall control exercised by Turkey over the “border zone” the applicants’ arrest and alleged ill-treatment in the “border area” on 19 July 1989 were imputable to her.

Moreover, the Court recalls 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, therefore, considers that this part of the application cannot be rejected as incompatible ratione personae .

Moreover, the Court considers that this part of 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. These aspects 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 them inadmissible has been established.

2. The applicant also complains under Article 1 of Protocol No. 1 and Article 14 of the Convention of her inability to enjoy her property in the northern part of Cyprus.

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 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 Government argue that the alleged violation of Article 1 of Protocol No. 1 is not imputable to Turkey because of novus actus interveniens imputable to the “TFSC” and its successor the “TRNC”. The applicant is no longer the owner of the properties in question as a result of intervening legislative, administrative and executive acts of the Turkish Cypriot authorities. 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.

The Government point out that, apart from the constitutional and legal provisions examined by the Court in Loizidou v. Turkey, there were actual acts of state by the “TRNC” expropriating the properties referred to by that applicant in her application. In this connection they provide a detailed account of the legal framework that permitted the expropriation of properties such as those claimed by the present applicant. The Government argue that it would be unrealistic not to give any effect 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, including acts of the “TRNC”. 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.

The Government also submit that the aim of the demonstration of 19 July 1989, which lies at the heart of the case, was to make political propaganda. The applicant did not genuinely intend to go to her alleged property. As a result, this part of the application is manifestly ill-founded.

Even assuming that a question could arise under Article 1 of Protocol No. 1 the Government argue that the interference with the applicant’s property rights can be justified under this provision. The properties claimed by the applicant have been expropriated in accordance with the laws of the “TRNC”. The 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 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, the Government submit that 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. The issues of property and compensation can only be settled through negotiations and on the basis of the already agreed principles of bi- zonality and bi-communality.

In the Government’s view, the Loizidou v. Turkey judgment of the Court cannot be considered as a precedent. The Court relied exclusively on Article 159 of the “TRNC” Constitution and had no knowledge of all the other facts entailing loss of the applicant’s property, such as the other intervening acts of the “TRNC”. Contrary to what the Court asserted, the Government never acknowledged in Loizidou v. Turkey that the applicant’s loss of control of her property stemmed from the occupation of the northern part of Cyprus and the establishment of the “TRNC”. As a matter of fact, the applicant’s loss of control and her inability to have access to her property depended on a number of factors, such as the cease-fire arrangements, the agreement for the relocation of populations, the unmanning agreement, the status of the UN buffer zone and the agreed principles of bi-communality and bi- zonality for an eventual settlement of the Cyprus problem. The Court relied heavily on the non-recognition of the “TRNC”. However, under international law, recognition is not a constitutive element of statehood. Moreover, what was important was not the legal effects of expropriation but that the Turkish Cypriot authorities had dealt with the applicant’s property one way or the other. Contrary to what the Court asserted in Loizidou v. Turkey, the presence of a large number of troops does not necessarily lead to the conclusion of overall control and responsibility. The “TRNC” is a democratic state exercising power of its own right. Qualifying it a “subordinate local administration” amounts to ignoring the political and administrative evolution in Cyprus since 1963, as well as recent declarations by eminent statesmen. Finally, the Government submit that the Security Council resolutions against the establishment of the “TRNC” were based on wrong assumptions, since there is no lawful Government of Cyprus as envisaged by the treaties concerning the establishment of the Republic and the Greek Cypriots deliberately disregarded the terms of the Constitution. In any event, these resolutions are not binding and their rigour has been mitigated by the United Nations-sponsored talks, which were subsequently resumed between the two communities on an equal footing.

The applicant notes 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 Government’s arguments concerning the character of the demonstration of 19 July 1989, the applicant stresses that she is the owner of property in the northern part of Cyprus.

As regards the Government’s argument that the alleged violations are not imputable to them but to the Turkish Cypriot authorities, the applicant submits that this contention is untenable in the light of the Court’s judgment in Loizidou v. Turkey. Since it has been established that Turkey is responsible for the acts of the Turkish Cypriot authorities concerning the applicant’s property, these acts cannot be regarded as novus actus interveniens .

The applicant also submits that considerations of consistency and respect for the principle of res judicata preclude reconsideration of the Court’s decision in Loizidou v. Turkey in a case that cannot be distinguished in any material way. In any event, the applicant wishes to stress that 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 the English and United States courts. There exists no authority for the proposition that legal effect must be given to acts of unrecognised subordinate administrations which have been established in defiance of Security Council resolutions and have attracted no international acceptance. The European Court of Justice refused to recognise phytosanitary certificates issued by the “TRNC”. 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, the voluntary relocation of populations and the bi-communal talks have no bearing on the issue.

Moreover, the applicant argues that the interference with her 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.

Finally, the applicant argues that her human rights are violated solely because she is Greek Cypriot. To argue that this is due to the separation between the two communities 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 considers that, in accordance with its above-mentioned Loizidou v. Turkey judgment, the alleged violations are imputable to Turkey. As a result, the application cannot be rejected as incompatible ratione personae .

Having examined the parties’ remaining observations, the Court considers that this part of 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. This part of 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.

3. The applicant had initially also complained of violations of Articles 1 and 10 of the Convention. However, on 10 November 1999 she informed the Court that she wished to withdraw the complaints in question.

The Court takes note of this development and considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of these complaints which, accordingly, no longer form part of the application.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits.

S. Dollé N. Bratza Registrar President