FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18360/91

by Sophia ANDREOU

against Turkey

The European Court of Human Rights ( First Section) sitting on 15 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr L. Ferrari Bravo,

Mr B. Zupančič ,

Mr J. Casadevall ,

Mr T. Pantiru ,

Mr R. Maruste , Judges ,

Mr F. Gölcüklü , ad hoc Judge,

with 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 7 June 1991 by Sophia Andreou against Turkey and registered on 14 June 1991 under file no. 18360/91;

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 April 1998 and the observations in reply submitted by the applicants on 8 September 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant was a Cypriot national. She was born on 8 December 1930 in Ayios Amvrosios in Kyrenia to Georgios Americanos and Christina Michael Kaka . After her marriage to Andreas Michael Ioannou , she was known as either Sophia Andreou Ioannou or as Sophia Andreou having taken her husband’s first name as a surname. The applicant died on 15 December 1993. Her heirs are her husband, her son, Michael Michael , and her daughter, Christina Michael. On 3 August 1993 the applicant’s heirs informed the Court that they wished to pursue the application. In the proceedings before the Commission, the applicant was represented by Mr K. Chrysostomides , a lawyer practising in Nicosia who continues to act for the heirs before the Court.

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

The applicant claimed that she was the owner of a house with a yard, of a garden and of four plots of land with trees in Ayios Amvrosios . She allegedly also owned ½ of a plot of land with trees and 1/6 of another plot with trees and of an olive grove in the same area. The applicant grew up and lived in Ayios Amvosios until 1973 when she claimed to have moved to Kyrenia . There she lived with her family allegedly in a house owned by her husband. In July 1974 the applicant and her family had to flee to the area still controlled by the Cypriot Government.

Between 1974 and her death the applicant was unable to return to her home and property in the northern part of Cyprus. Nor could she enjoy in any other manner her property there.

After 1974 the applicant took part in a number of peaceful demonstrations and marches towards Ayios Amvrosios . She claimed that on all occasions she was prevented from “walking home” by the Turkish troops. On 9 December 1990 the applicant took part for yet another time in a car convoy organised by persons from Kyrenia who intended to return to their homes in the north peacefully. The participants in the convoy had notified the Prime Minister of Turkey, the representative of the Secretary General of the United Nations in Cyprus and the commander of the United Nations forces on the island of their intention to return home. They drove to the Mia Milia buffer-zone checkpoint on the main road linking Nicosia and Kyrenia . There they stopped and asked the United Nations forces officer on duty to be allowed to return to their homes, property and villages. They requested him to transmit to the Turkish military authorities their demand to return to their homes. Four hours later, the United Nations forces officer announced to the applicant and the other participants in the convoy that their request to drive through the checkpoint and enter the northern part of Cyprus had been rejected. The applicant claimed that they had been told that their request had been rejected by the Turkish military authorities. The respondent Government contend that the United Nations officer had consulted the Turkish Cypriot authorities.

COMPLAINTS

The applicant alleged a violation of Article 8 of the Convention and of Article 1 of Protocol No. 1.

In their observations in reply her heirs also complained of a violation of Article 14 of the Convention.

PROCEEDINGS BEFORE THE COURT

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

On 16 October 1991 the Commission decided to adjourn the examination of the admissibility of the application pending further developments in applications Nos. 15299/89 15300/89 and 15318/89 Chrysostomos , Papachrysostomou and Loizidou v. Turkey.

On 29 November 1993 the Commission, having adopted its reports on the merits of the Chrysostomos , Papachrysostomou and Loizidou v. Turkey cases, decided to communicate the application to the respondent Government.

On 16 March 1994 the Government requested the Commission to adjourn the examination of the application until the delivery of the Court’s judgment in the Loizidou v. Turkey case. On 9 April 1994 the Commission decided to grant the Government’s request.

On 8 April 1995 the Commission, having noted that the judgment delivered by the Court on 23 March 1995 in Loizidou v. Turkey concerned a number of preliminary objections raised by the respondent Government but not the merits of the case, decided to adjourn the examination of the application pending delivery of the Court’s judgment on the merits of the Loizidou v. Turkey case.

On 23 January 1997, following the Court’s judgment of 18 December 1996 on the merits of the Loizidou v. Turkey case, the Commission decided to invite the Government to submit their observations on the admissibility and merits of the application.

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

On 18 April 1997 the Commission decided to request the applicant to provide further information on the property she allegedly owned in the northern part of Cyprus and, pending receipt of this information, to suspend its request for the submission of observations by the respondent Government. On 7 October 1997 and 11 November 1997 the applicant’s lawyer applied for extensions. His requests were granted by the President of the Commission.

On 30 December 1997 the applicant’s lawyer submitted the information requested. On 20 January 1998 the information was transmitted to respondent Government who were invited to submit the observations requested on 23 January 1997.

On 30 April 1998 the Government submitted observations on the admissibility and merits of the case.

On 26 June 1998 the applicant’s lawyer applied for an extension of the time-limit for the submission of observations in reply. The request was granted by the President of the Commission.

On 3 August 1998 the applicant’s heirs informed the Commission of the applicant’s demise. They also applied for legal aid and requested an extension of the time-limit for the submission of observations in reply. The President of the Commission granted the request for an extension.

On 18 August 1998 the applicant’s heirs submitted observations in reply.

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.

On 11 May 1999 a Chamber of the Court (First Section) decided that the applicant’s heirs could pursue the applicant’s complaints. On the same day the President of the First Section decided to grant them legal aid.

THE LAW

1. The applicant complained of a violation of Article 8 of the Convention and of Article 1 of Protocol No. 1.

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 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.”

The respondent Government submit that they have no jurisdiction or responsibility or actual or effective control in the northern part of Cyprus in relation to the applicants’ complaints. Turkey cannot compel the Turkish Cypriot authorities to allow any Greek Cypriots to return to their property or have free access to the northern part of the island. The complaints of the applicant are not imputable to Turkey because of novus actus interveniens of the Turkish Cypriot authorities. The respondent Government refer in this connection to a series of legislative, administrative and executive acts of the Turkish Cypriot authorities. As regards the applicant’s attempt to return to her properties on 9 December 1990, the Government submit that the United Nations do not allow for violations by civil or military persons of the buffer zone, which has a special status. The United Nations forces in Cyprus did not get in touch with the Turkish authorities over the incident. They addressed themselves to the Turkish Cypriot authorities.

In the alternative the respondent Government submit that the application is manifestly ill-founded. The applicant had not produced any evidence that she was the owner of immovable property in Kyrenia / Girne or Ayios Amvrosios / Esentepe in July 1974. The documents obtained by the applicant from the Lands Office of the Republic of Cyprus cannot be relied on because they were issued on the basis of information supplied by her and do not show title to the properties concerned at the material time, i.e. in 1974. Moreover, there is no evidence that at that time the applicant had her residence in Kyrenia . The aim of the demonstration of 9 December 1990 was to make political propaganda. There was no genuine intention to return to properties in the northern part of Cyprus. The applicant did not apply through the proper channels. Mia Milia is not an approved crossing point. Moreover, she was well aware of the agreement between the two communities about the voluntary relocation of populations, which was implemented under the auspices of the United Nations.

In any event, given the political situation in the island, the complaints put forward by the applicant can only be settled within a framework of an overall settlement of the island’s problems. Alternatively, the extensive control of the use of property in the northern part of the island by the Turkish Cypriot authorities is justified in the general interest in accordance with Article 1 of Protocol No. 1. The respondent Government point out in this connection that it would be paradoxical and unfair not to take the local laws into consideration and yet to find Turkey responsible for the acts of state of the Turkish Cypriot authorities. They also submit that the measures in question were necessary to facilitate the rehabilitation of Turkish Cypriot refugees and look after and put to better use abandoned Greek Cypriot property. Moreover, 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.

The applicant side notes that the Government have not sought to rely on the terms of their declarations 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 Turkish Cypriot authorities, the applicant side submits that this contention is untenable in the light of the Court’s judgment in Loizidou v. Turkey (Eur. Court HR, Loizidou v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-V, p. 2216). 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 did attempt to cross the buffer zone and she was indeed the owner of the properties in question in 1974 and had her home in Kyrenia at the time. Having made this clear, the applicant side wishes to stress that, according to the Court’s judgment in Loizidou v. Turkey, it is not necessary for an applicant to show that he or she attempted to do such a thing in order to establish a violation. Furthermore, the Court did not hold in Loizidou v. Turkey that there had to have been a violation which could be traced to 1974 in order to establish that there was a violation imputable to Turkey.

The applicant side 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 side 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 US courts. There exists no authority to the effect 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 ECJ refused to recognise phytosanitary certificates issued by the “TRNC”. The acts mentioned by the ICJ 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.

As regards the Government’s submission that the application is manifestly ill-founded the applicant side submits that the respondent Government could have verified the title deeds issued by the Lands Office of the Republic of Cyprus against the old records in Kerynia which they hold. In addition to the title deeds, the applicant side has submitted a certificate by the competent local authority concerning the applicant’s properties in the northern part of Cyprus and a number of affidavits. The applicant did not leave the northern part of Cyprus of her own accord. She had to flee in 1974. According to Loizidou v. Turkey, subsequent acts of the “TRNC” could not deprive her of her title to the property. Moreover, there was no legitimate authority from which she could attempt to regain her property. Between 1974 and her death, the applicant was continuously affected in the enjoyment of her right to property. Moreover, as the Government themselves admit, there was a significant change in the treatment of Greek Cypriot property in the northern part of the island with the enactment by the “TRNC” of law No. 52 of 1995 which gives effect to Article 159 of the “TRNC” Constitution.

The applicant side further submits that the interference with the applicant’s 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 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 applicant side also submits that in 1974 the applicant had her home in Kyrenia . Being unable to return there until her death, she was the victim of a violation of Article 8 of the Convention (applications Nos. 6780/74 and 6950/75 Cyprus v. Turkey, Comm. Report, 10.7.76, unpublished, §§ 208-210; application No. 8007/77 Cyprus v. Turkey, Comm. Report 4.10.83, §§ 135-136, D.R. 72, p. 5).

The Court will first examine the respondent Government’s submission that the alleged violations are not imputable to them because the acts interfering with the applicant’s rights to property and respect for home were taken by the Turkish Cypriot authorities after 1974, because of the responsibility of the United Nations forces in Cyprus in respect of the buffer zone and because on 9 December 1990 the United Nations officer at Mia Milia , before refusing the applicant permission to enter the northern part of Cyprus, consulted the Turkish Cypriot as opposed to the Turkish authorities. 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 considers that, insofar as the issue of “jurisdiction” under Article 1 of the Convention is concerned, the applicant’ situation was not materially different from that of the applicant in Loizidou v. Turkey, since the present applicant claimed to have had her 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 extended to that part of the island. It follows that the Court does not have to determine exactly what happened at Mia Milia on 9 December 1990 and 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.

2. The applicant’s heirs also complain of a violation of her right under Article 14 of the Convention not to be discriminated in the enjoyment of her rights under Article 8 thereof and under Article 1 of Protocol No. 1.

The Court has considered that the applicant’s heirs can pursue the applicant’s complaints. However, the Court notes that the applicant had never complained expressly or in substance about discrimination in the enjoyment of her rights under the Convention and Protocol No. 1. In these circumstances, the Court considers that the applicant’s heirs cannot complain after her death that she had been a victim of discrimination contrary to Article 14 of the Convention.

It follows that this part of the application is incompatible ratione personae and must be declared inadmissible as incompatible with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

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

Michael O’Boyle Elisabeth Palm Registrar President