FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36705/97

by Andreas ORPHANIDES

against Turkey

The European Court of Human Rights ( First Section) sitting on 8 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson,

Mr B. Zupančič,

Mr T. Pantiru,

Mr R. Maruste, Judges ,

Mr F. Gölcüklü, Judge ad hoc,

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 10 June 1997 by Andreas Orphanides against Turkey and registered on 25 June 1997 under file no. 36705/97;

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

Having regard to the fact that the Government’s observations were not submitted within the time-limit;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot national, born in 1955 and living in Nicosia. He is represented before the Court by Mr Ch. Clerides, a lawyer practising in Nicosia.

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

Until July 1974 the applicant lived with his family in a house belonging to his parents in Lapithos, Kyrenia, in the northern part of Cyprus. In July 1974, as the Turkish army was advancing, the applicant and his family had to leave Lapithos. Ever since, they have not been able to return to this house.

On 20 April 1990 the applicant’s parents, by way of gift, transferred the ownership of 50% of this house to the applicant. They also transferred to him a 50% share in three other houses, two shops and a number of plots of land and water installations in Lapithos, also by way of gift. The remaining 50% share in all the properties mentioned above was transferred to the applicant’s sister. The transfers were recorded in the Land Registry of the Republic of Cyprus and the applicant was issued with title deeds.

The applicant is unable to have access or enjoy in any other manner his property.

COMPLAINTS

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 are violated. He also complains that, because he is Greek Cypriot, he is subjected to discrimination in the enjoyment of the above-mentioned rights contrary to Article 14 of the Convention.

PROCEDURE

The application was introduced on 10 June 1997 and registered on 25 June 1997.

On 10 July 1997, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 25 November 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 20 July 1998, also after an extension of the time-limit.

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 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 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, according to the records of the “Turkish Cypriot Lands Office” in Girne/Kyrenia, the applicant was not the owner of any property in the northern part of Cyprus in 1974. Nor is he, according to the same source, the owner of any property now. Given that in 1974 the applicant had no right or interest in relation to the properties referred to in the application, there is no question of a continuing violation that could have subsisted until 28 January 1987 when Turkey recognised the right of individual petition. Assuming that the applicant acquired the properties in question in 1990, there is no question of Turkish involvement in view of intervening acts of state of the Turkish Cypriot authorities that cannot be imputed to Turkey. Moreover, the applicant, having acquired the properties in question 16 years after the events of 1974 and three years after Turkey’s declaration concerning the right of individual petition, knew that access to this property was practically impossible and that the Turkish Cypriot authorities had expropriated it. As a result, he cannot invoke Turkish responsibility. In the light of all the above, the application is incompatible either ratione materiae or ratione temporis.

Moreover, the Government submit that the application is incompatible ratione personae. Turkey has no jurisdiction or control in the northern part of Cyprus as regards the complaints of the applicant. 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. As opposed to Loizidou v. Turkey, there is no question of Turkish involvement in preventing the applicant from having access to his property. The applicant’s case does not relate to cease-fire/border violations. Moreover, 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 applicant 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 applicant in his 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 applicant. 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 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 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 applicant’s 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 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 respondent Government’s argument that the alleged violations are not imputable to them but to the “TRNC”, the applicant submits that this submission is untenable in the light of the Court’s decision in Loizidou v. Turkey. In the applicant’s view, his 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 applicant to show that, since the date of Turkeys’ declaration under former Article 25 of the Convention, he attempted to cross the buffer zone to gain access to his property. Moreover, the Court in Loizidou v. Turkey did not hold 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. Furthermore, once it is established that Turkey is responsible for the acts of the “TRNC” concerning the applicant’s 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 applicant’s 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 the English and US 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. The decision of the ECJ refusing to recognise phytosanitary certificates issued by the “TRNC” is omitted. 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 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 applicant observes that his parents were the lawful owners of the properties in question in 1974. The respondent Government could have ascertained this by consulting the “Turkish Cypriot Lands Office”. There was the expectation that the applicant and his sister would, in due course, become their registered owners. Subsequent acts of the “TRNC” could not deprive his parents of their title, as held by the Court in Loizidou v. Turkey. The applicant became the legal owner on 20 April 1990 and this was recorded by the official authorities of the Republic of Cyprus. This transaction could not have been recorded by the “Turkish Cypriot Lands Office” because the authorities of the “TRNC” consider that the properties in question had already been expropriated. The respondent Government cannot rely on the records of the “Turkish Cypriot Lands Office” to contest the applicant’s title.

Even assuming that the applicant had no propriety rights until he became the registered owner on 20 April 1990, that would only mean that there was no continuing violation of his rights under Article 1 Protocol No. 1 between 1974 and that date. The applicant, in order to establish that there was a violation of his rights under Article 1 of Protocol No. 1 after 20 April 1990, is not required to show that there was a violation of his rights before that date, as the Government are arguing. It is sufficient that the applicant is not allowed to enjoy his property since 20 April 1990 and, 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. In any event, the applicant had a proprietary interest in the properties concerned in 1974 and the house in question was his home. The fact that the applicant knew that he could not enjoy his property when he became the registered owner in 1990 is irrelevant.

Moreover, 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 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.

Finally, the applicant argues that his human rights are violated solely because he is Greek Cypriot. 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, para. 56).

The Court notes that, as opposed to the applicant in Loizidou v. Turkey, the present was not the registered owner 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 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 further notes that the Government argue that the application is incompatible ratione materiae because the applicant never acquired title to the properties concerned and 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 applicant’s 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, / by a majority,

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

Michael O’Boyle Elisabeth Palm Registrar President