Mensenrechtenhof: Turkije moet Grieks-Cyprioten met eigendom in Turks Cyprus toegang verlenen tot hun woning en grond (en)

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Xenides-Arestis v. Turkey (application no. 46347/99).

The Court held:

• - 

  by six votes to one, that there had been a violation of Article 8 (right to respect for the applicant's home) of the European Convention on Human Rights;
• - 

  by six votes to one, that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention;
• - 

  unanimously, that it was not necessary to examine the applicant's complaint under Article 14; and
• - 

  unanimously, that Turkey should introduce a remedy, within three months, which secures, in respect of the Convention violations identified in the judgment, genuinely effective redress for the applicant as well as in relation to all similar applications (approximately 1,400) pending before the Court.

Pending the implementation of general measures, the Court adjourned its consideration of all similar applications.

The Court further held, unanimously that, as far as any pecuniary or non-pecuniary damage was concerned, the question of the application of Article 41 (just satisfaction) was not ready for decision and awarded the applicant EUR 65,000 for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Myra Xenides-Arestis, is a Cypriot national of Greek-Cypriot origin who was born in 1945 and lives in Nicosia.

The applicant owns half a share in a plot of land in the area of Ayios Memnon, in Famagusta (Northern Cyprus), which was given to her by her mother. There are a shop, a flat and three houses on the land. One of the houses was her home, where she lived with her husband and children, and the rest of the property was either used by members of the family or rented out. She also owns part of a plot of land with an orchard.

The applicant has been prevented from living in her home or using her property since August 1974, as a result of the continuing division of Cyprus since the conduct of military operations in northern Cyprus by Turkey in July and August 1974.

On 30 June 2003 the "Parliament of the Turkish Republic of Northern Cyprus" enacted the "Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus". A commission was set up under this "law" with a mandate to deal with compensation claims.

The United Nations plan for the reunification of Cyprus (the Foundation Agreement - Settlement Plan or "Annan Plan") was put to the vote in Cyprus on 24 April 2004, with two separate referendums being held for the Greek-Cypriot and Turkish-Cypriot communities. As the plan was rejected in the Greek-Cypriot referendum, it did not enter into force.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 4 November 1998. A hearing on the admissibility of the application took place in the Human Rights Building, Strasbourg, on 2 September 2004. By a decision of 14 March 2005 the Court declared the application admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Georg Ress (German), President,

Ireneu Cabral Barreto (Portuguese),

Lucius Caflisch (Swiss) [2],

Riza Türmen (Turkish),

John Hedigan (Irish),

Kristaq Traja (Albanian),

Alvina Gyulumyan (Armenian), judges,

and also Vincent Berger, Section Registrar.

• 3. 

  Summary of the judgment [3]

Complaints

The applicant complained of a continuing violation of her rights under Article 8 of the Convention (right to respect for her home) and Article 1 of Protocol No. 1 (protection of property) to the Convention in that, since August 1974, she has been deprived of her right to property and her home. She also maintained that Turkish military forces prevent her from having access to and from using and enjoying her home and property because she is Greek Orthodox and of Greek-Cypriot origin, in violation of Article 14 (prohibition of discrimination) of the Convention.

Decision of the Court

Article 8

The Court observed that the applicant's situation differed from that of the applicant in the case Loizidou v. Turkey (judgment of 18 December 1996) since, unlike Mrs Loizidou, the applicant had actually lived in Famagusta. Since 1974 she had been unable to gain access to, to use and enjoy her home.

The Court concluded, as it had also found in Cyprus v. Turkey (judgment of 10 May 2001), that the complete denial of the right of the applicant, a Greek-Cypriot displaced person, to respect for her home in northern Cyprus constituted a continuing violation of Article 8.

Article 1 of Protocol No. 1

The Court pointed out that the Turkish Government continued to exercise overall military control over northern Cyprus and that the fact that the Greek-Cypriots had rejected the Annan Plan did not have the legal consequence of bringing to an end the continuing violation of the rights of displaced persons.

The Court further found that the applicant had still to be regarded as the legal owner of her land.

The Court found no reason to depart from the conclusions which it had reached in previous cases, in particular the case Loizidou v. Turkey: "As a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1 [_.] It has not [_] been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant's property rights in the form of a total and continuous denial of access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of inter-communal talks involving both communities in Cyprus provide a justification for this situation under the Convention".

Accordingly, the Court concluded that there had been and continues to be a violation of Article 1 of Protocol No. 1 by virtue of the fact that the applicant is denied access to, control, use and enjoyment of her property and any compensation for the interference with her property rights.

Article 14

The Court found, in line with its Grand Chamber judgment in the case Cyprus v. Turkey, that, in the circumstances of the case, the applicant's complaints under Article 14 amounted in effect to the same complaints, albeit seen from a different angle, as those considered in relation to Article 8 of the Convention and Article 1 of Protocol No. 1. Since it had already found violations of those articles, the Court considered that it was not necessary to examine whether there had been a violation of Article 14 taken in conjunction with Article 8 and Article 1 of Protocol No. 1 by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to the peaceful enjoyment of their possessions.

Article 46

It was inherent in the Court's findings that the violation of the applicant's rights guaranteed by Article 8 and Article 1 of Protocol No. 1 originated in a widespread problem affecting large numbers of people, i.e. the unjustified hindrance on the applicant's "respect for her home" and "peaceful enjoyment of her possessions" which is enforced as a matter of policy or practice in the "Turkish Republic of Northern Cyprus". Moreover, the Court could not ignore the fact that there were already approximately 1,400 property cases pending before the Court brought primarily by Greek-Cypriots against Turkey.

The Court considered that Turkey had to introduce a remedy which secured, in respect of the Convention violations identified in the judgment, genuinely effective redress for the applicant as well as in relation to all similar applications pending before the Court, in accordance with the principles for the protection of the rights laid down in Article 8 and Article 1 of Protocol No. 1. Such a remedy should be available within three months and redress should occur three months after that.

Judge Türmen expressed a dissenting opinion, which is annexed to the judgment.

***

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] Judge elected in respect of Liechtenstein.

[3] This summary by the Registry does not bind the Court.