Information Note on the Court’s case-law No. 81
December 2005
Xenides-Arestis v. Turkey - 46347/99
Judgment 22.12.2005 [Section III]
Article 46
Article 46-2
Execution of judgment
Remedy to secure redress within three months for applicants who are being hindered from returning to their homes and properties in northern Cyprus
Article 8
Article 8-1
Respect for home
Remedy to secure redress within three months for applicants who are being hindered from returning to their homes and properties in northern Cyprus
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Remedy to secure redress within three months for applicants who are being hindered from returning to their homes and properties in northern Cyprus
Facts: The applicant, a Cypriot national of Greek-Cypriot origin, owns half a share in a plot of land in Famagusta (northern Cyprus). One of the houses on the land 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 1974, as a result of the continuing division of Cyprus since the conduct of military operations in northern Cyprus by Turkey that year.
In 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 with a mandate to deal with compensation claims. The UN plan for the reunification of Cyprus (“the Annan Plan”) was put to the vote in Cyprus in 2004 but as it was rejected in the Greek-Cypriot referendum it did not enter into force.
Article 8 – This applicant’s situation differed from that of the applicant in Loizidou v. Turkey (Reports of Judgments and Decisions 1996‑VI) since, unlike Mrs Loizidou, this 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 (ECHR 2001‑IV), 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.
Conclusion: violation (six votes to one).
Article 1 of Protocol No. 1 –The Turkish Government continued to exercise overall military control over northern Cyprus and 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 applicant had still to be regarded as the legal owner of her land. The Court therefore 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 had been refused access to the land since 1974, she effectively had lost all control over, as well as all possibilities to use and enjoy her property. The continuous denial of access therefore had to be regarded as an interference with her rights under Article 1 of Protocol No. 1. It had not been explained how the need to resettle displaced Turkish Cypriot refugees in the years following the Turkish intervention 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 could 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, there had been and continues to be a violation of Article 1 of Protocol No. 1 by virtue of the fact that the applicant was and is being denied access to, control, use and enjoyment of her property and any compensation for the interference with her property rights.
Conclusion: violation (six votes to one).
Article 14 – In line with the Court’s judgment in Cyprus v. Turkey, 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 found it unnecessary 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.
Conclusion: not necessary to examine the complaint under Article 14 (unanimously).
Article 46 – It was inherent in the Court’s findings that the violation of the applicant’s rights under 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 was 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.
Conclusion (unanimous): 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 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. Pending the implementation of general measures, the Court adjourned its consideration of all similar applications.
Article 41 – As far as any pecuniary or non-pecuniary damage was concerned, the just satisfaction question was not ready for decision. The applicant was awarded costs and expenses.
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This summary by the Registry does not bind the Court.
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