COUNCIL OF EUROPE

A.  As to the facts established by the Commission
162.  The applicant Government endorsed the facts as found by the Commission (see paragraphs 30-33 above). In respect of those findings they requested the Court to conclude that the facts disclosed violations of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 as well as of Article 14 of the Convention taken in conjunction with these provisions. They further submitted that the facts at issue gave rise to violations of Articles 3, 17 and 18 of the Convention.

163.  The Court considers that there are no exceptional circumstances which would lead it to take a different view of the facts established by the Commission (see paragraphs 30-33 above). It notes in this regard that the Commission was able to draw on the findings contained in its 1976 and 1983 reports and took into account the impact of “legislative” and other texts in force in the “TRNC” on the enjoyment of the rights invoked by the applicant Government. It further notes that the respondent Government did not contest the accuracy of several allegations of fact made by the applicant Government in the proceedings before the Commission (see paragraph 29 above).

164.  The Court will accordingly examine the merits of the applicant Government’s complaints with reference to the facts established by the Commission.

B.  As to the merits of the applicant Government’s complaints
1.  Article 8 of the Convention
165.  The applicant Government maintained that it was an unchallengeable proposition that it was the respondent State’s actions which had prevented the displaced Greek Cypriots from returning to their homes, in violation of Article 8 of the Convention which provides:
“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.”

166.  The applicant Government declared that the policy of the respondent State, aimed at the division of Cyprus along racial lines, affected 211,000 displaced Greek Cypriots and their children as well as a number of Maronites, Armenians, Latins and individual citizens of the Republic of Cyprus who had exercised the option under the Constitution to be members of the Greek-Cypriot community. They submitted that the continuing refusal of the “TRNC” authorities to allow the displaced persons to return to the north violated not only the right to respect for their homes but also the right to respect for their family life. In this latter connection, the applicant Government observed that the impugned policy resulted in the separation of families.

167.  In a further submission, the applicant Government requested the Court to find that the facts also disclosed a policy of deliberate destruction and manipulation of the human, cultural and natural environment and conditions of life in northern Cyprus. The applicant Government contended that this policy was based on the implantation of massive numbers of settlers from Turkey with the intention and the consequence of eliminating Greek presence and culture in northern Cyprus. In the view of the applicant Government, the notions of “home” and “private life” were broad enough to subsume the concept of sustaining existing cultural relationships within a subsisting cultural environment. Having regard to the destructive changes being wrought to that environment by the respondent State, it could only be concluded that the rights of the displaced persons to respect for their private life and home were being violated in this sense also.

168.  The Commission observed in the first place that the issue of whether the persons concerned by the impugned measures could have been expected to use local remedies to seek redress for their grievances did not have to be examined. In the Commission’s opinion, the refusal of the “TRNC” authorities to allow the displaced persons to return to their homes reflected an acknowledged official policy and, accordingly, an administrative practice. In these circumstances there was no Convention requirement to exhaust domestic remedies.

169.  As to the merits of the complaints concerning the plight of the displaced persons, the Commission found, with reference to its conclusions in its 1976 and 1983 reports and the findings of fact in the instant case (see paragraphs 30-33 above), that these persons, without exception, continued to be prevented from returning to or even visiting their previous homes in northern Cyprus. In the Commission’s opinion, the facts disclosed a continuing violation of Article 8 in this respect, irrespective of the respondent Government’s appeal to the public-safety considerations set out in the second paragraph of Article 8. As to the respondent Government’s view that the claim of Greek-Cypriot displaced persons to return to the north and to settle in their homes had to be solved in the overall context of the inter-communal talks, the Commission considered that these negotiations, which were still very far from reaching any tangible result on the precise matter at hand, could not be invoked to justify the continuing maintenance of measures contrary to the Convention.

170.  Having regard to its Article 8 finding as well as to its conclusions on the applicant Government’s complaint under Article 1 of Protocol No. 1 (see paragraph 183 below), the Commission considered that it was not necessary to examine the applicant Government’s further allegations concerning the manipulation of the demographic and cultural environment of the displaced persons’ homes.

171.  The Court notes that in the proceedings before the Commission the respondent Government did not dispute the applicant Government’s assertion that it was not possible for displaced Greek Cypriots to return to their homes in the north. It was their contention that this situation would remain unchanged pending agreement on an overall political solution to the Cypriot question. In these circumstances the Court, like the Commission, considers that the issue of whether the aggrieved persons could have been expected to avail themselves of domestic remedies in the “TRNC” does not arise.

172.  The Court observes that the official policy of the “TRNC” authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south. Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them.

173.  The Court further notes that the situation impugned by the applicant Government has obtained since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in “legislation” and is enforced as a matter of policy in furtherance of a bi-zonal arrangement designed, it is claimed, to minimise the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General (see paragraph 16 above).

174.  The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 § 2 of the Convention (see paragraph 173 above); secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing.

175.  In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.

176.  As to the applicant Government’s further allegation concerning the alleged manipulation of the demographic and cultural environment of the displaced persons’ homes, the Court, like the Commission, considers that it is not necessary to examine this complaint in view of its above finding of a continuing violation of Article 8 of the Convention.

177.  Furthermore, the Court considers it appropriate to examine the applicant Government’s submissions on the issue of family separation (see paragraph 166 above) in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots.

2.  Article 1 of Protocol No. 1
178.  The applicant Government maintained that the respondent State’s continuing refusal to permit the return of the displaced persons to northern Cyprus not only prevented them from having access to their property there but also prevented them from using, selling, bequeathing, mortgaging, developing and enjoying it. In their submission, there were continuing violations of all the component aspects of the right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1, which states:
“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.”

179.  The applicant Government contended that the respondent State had adopted a systematic and continuing policy of interference with the immovable property of the displaced persons. They stated, inter alia, that the properties in question, of which the displaced persons were unlawfully dispossessed following their eviction from the north, were transferred into Turkish possession. Steps were then taken to “legalise” the illegal appropriation of the properties and their allocation to “State” bodies, Turkish Cypriots and settlers from the Turkish mainland. This was effected by means such as the assignment of “title deeds” to their new possessors. No compensation had ever been awarded to the victims of these interferences. Furthermore, specific measures had been taken to develop and exploit commercially land belonging to displaced persons, Church-owned land had been transferred to the Muslim religious trust, and agricultural produce from Greek-Cypriot land was now being exported accompanied by Turkish certificates.

180.  In the applicant Government’s submission, the continuing violation of property rights clearly engaged the responsibility of the respondent State under the Convention in view of the conclusions reached by the Court in its Loizidou judgment (merits). Quite apart from that consideration, the applicant Government pointed out that, in so far as the respondent State sought to justify the interferences with the displaced persons’ property rights by invoking the derogation contained in Article 1 of Protocol No. 1, the “legal” measures relied on had necessarily to be considered invalid since they emanated from an illegal secessionist entity and could not for that reason be considered to comply with the qualitative requirements inherent in the notion of “provided for by law”.

181.  The Commission observed that the applicant Government’s complaints were essentially directed at the “legislation” and the acknowledged administrative practice of the “TRNC” authorities. On that account, the persons aggrieved were not required to take any domestic remedies, it being noted by the Commission that, in any event, it did not appear that any remedies were available to displaced Greek Cypriots deprived of their property in northern Cyprus.

182.  As to the merits, the Commission considered that the nature of the alleged interferences with the property rights of displaced Greek Cypriots was in essence the same as the interference of which Mrs Loizidou had complained in her application. Although that application concerned one particular instance of the general administrative practice to which the complaints in the present case relate, the Court’s reasoning at paragraphs 63 and 64 of its Loizidou judgment (merits) (pp. 2237-38) must also apply to the administrative practice as such.

183.  The Commission, essentially for the reasons set out by the Court in the above-mentioned judgment, concluded that during the period under consideration there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.

184.  The Court agrees with the Commission’s analysis. It observes that the Commission found it established on the evidence that at least since June 1989 the “TRNC” authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus (see paragraph 32 above). This purported deprivation of the property at issue was embodied in a constitutional provision, “Article 159 of the TRNC Constitution”, and given practical effect in “Law no. 52/1995”. It would appear that the legality of the interference with the displaced persons’ property is unassailable before the “TRNC” courts. Accordingly, there is no requirement for the persons concerned to use domestic remedies to secure redress for their complaints.

185.  The Court would further observe that the essence of the applicant Government’s complaints is not that there has been a formal and unlawful expropriation of the property of the displaced persons but that these persons, because of the continuing denial of access to their property, have lost all control over, as well as possibilities to enjoy, their land. As the Court has noted previously (see paragraphs 172-73 above), the physical exclusion of Greek-Cypriot persons from the territory of northern Cyprus is enforced as a matter of “TRNC” policy or practice. The exhaustion requirement does not accordingly apply in these circumstances.

186.  The Court recalls its finding in the Loizidou judgment (merits) that that particular applicant could not be deemed to have lost title to her property by operation of “Article 159 of the TRNC Constitution”, a provision which it held to be invalid for the purposes of the Convention (p. 2231, § 44). This conclusion is unaffected by the operation of “Law no. 52/1995”. It adds that, although the latter was not invoked before the Court in the Loizidou case, it cannot be attributed any more legal validity than its parent “Article 159” which it purports to implement.

187.  The Court is persuaded that both its reasoning and its conclusion in the Loizidou judgment (merits) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the “TRNC” authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1. It further notes that, as regards the purported expropriation, no compensation has been paid to the displaced persons in respect of the interferences which they have suffered and continue to suffer in respect of their property rights.

188.  The Court notes that the respondent Government, in the proceedings before the Commission, sought to justify the interference with reference to the inter-communal talks and to the need to rehouse displaced Turkish-Cypriot refugees. However, similar pleas were advanced by the respondent Government in the Loizidou case and were rejected in the judgment on the merits (pp. 2237-38, § 64). The Court sees no reason in the instant case to reconsider those justifications.

189.  For the above reasons the Court concludes that there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.

3.  Article 13 of the Convention
190.  The applicant Government asserted that the manifest failure of the respondent State to provide an effective or indeed any remedy to displaced persons in respect of the violations of Article 8 of the Convention and Article 1 of Protocol No. 1 was in clear breach of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

191.  The applicant Government approved in the main the reasoning which led the Commission to find a breach of Article 13.

192.  The Commission referred to its finding that the displaced persons’ rights under Article 8 of the Convention and Article 1 of Protocol No. 1 were violated as a matter of administrative practice. In so far as these practices were embodied in “legislation” of the “TRNC”, the Commission noted that no provision was made to allow Greek Cypriots to contest their physical exclusion from the territory of northern Cyprus. On that account the Commission found that displaced persons had no remedies to contest interferences with their rights under these Articles and that there was a violation of Article 13 in consequence.

193.  The Court notes that in the proceedings before the Commission the respondent Government pleaded that, pending the elaboration of an agreed political solution to the overall Cyprus problem, there could be no question of a right of displaced persons either to return to the homes and properties which they had left in northern Cyprus or to lay claim to any of their immovable property vested in the “TRNC” authorities by virtue of “Article 159 of the TRNC Constitution” and allocated to Turkish Cypriots with full title deeds in accordance with implementing “Law no. 52/1995”. The respondent Government did not contend before the Commission that displaced persons could avail themselves of local remedies to contest this policy of interference with their rights. Indeed, the Court considers that it would be at variance with the declared policy to provide for any challenge to its application. The Court further recalls in this connection that, as regards the violations alleged under Article 8 of the Convention and Article 1 of Protocol No. 1, it concluded that no issue arose in respect of the exhaustion requirement. It refers to the reasons supporting those conclusions (see paragraphs 171-75 and 184-89 above).

194.  For these reasons, the Court, like the Commission, concludes that there has been a violation of Article 13 of the Convention by reason of the respondent State’s failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1.

4.  Article 14 of the Convention taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1
195.  The applicant Government stated that the administrative practices, “legislation” and “constitutional provisions” at issue violated not only the rights guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1 but, being exclusively directed against Greek Cypriots not living in northern Cyprus, also Article 14 of the Convention. Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] 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.”

196.  Elaborating on their submission, the applicant Government maintained that the aim of the respondent State was to discriminate against Greeks and Greek Cypriots since only these classes of persons were disentitled to acquire immovable property in the “TRNC”. Other “aliens” such as British retired persons were not prevented from acquiring immovable property in the “TRNC”, inter alia property which had been “abandoned” by Greek-Cypriot displaced persons. Furthermore, Turks from Turkey not resident in the “TRNC” were not treated as having abandoned their property and were permitted to acquire new property holdings or homes.

197.  The applicant Government further submitted that, as a matter of practice, the respondent State failed, on a discriminatory basis, to provide remedies for Greek Cypriots and Greeks in respect of their property rights. In their submission, there was a breach of Article 14 of the Convention in conjunction with Article 13.

198.  The Commission concluded that the interferences with the rights under Article 8 of the Convention and Article 1 of Protocol No. I concerned exclusively Greek Cypriots not residing in northern Cyprus and were imposed on them for the very reason that they belonged to this class of person. There was accordingly a breach of Article 14 read together with Article 8 of the Convention and Article 1 of Protocol No. 1. The Commission did not pronounce on the applicant Government’s complaint under Article 13 taken together with Article 14.

199.  The Court considers that, in the circumstances of the present case, the applicant Government’s complaints under this heading amount in effect to the same complaints, albeit seen from a different angle, as those which the Court has already considered in relation to Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. It has found that those Articles have been violated. In considers that it is not necessary to examine whether in this case there has been a violation of Article 14 taken in conjunction with those Articles by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for their homes, to the peaceful enjoyment of their possessions and to an effective remedy.

5.  Article 3 of the Convention
200.  The applicant Government claimed that the treatment to which the displaced persons were subjected amounted to an infringement of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

201.  The applicant Government pleaded that the Court should find a violation of Article 3 since, in their view, treatment especially singling out categories of persons on racial and ethnic grounds, subjecting them to severe hardship, denying them or interfering with their Convention rights, and doing so specifically and publicly, amounted to conduct which was an affront to human dignity to the point of being inhuman treatment.

202.  The Commission considered that it was unnecessary to examine whether the discrimination at issue also constituted inhuman or degrading treatment within the meaning of Article 3, having regard to its finding under Article 14.

203.  Bearing in mind its own conclusion on the applicant Government’s complaints under Article 14 of the Convention (see paragraphs 195 and 199 above) as well as its finding of a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, the Court, for its part, does not consider it necessary to examine whether the facts alleged also give rise to a breach of Article 3 of the Convention.

6.  Articles 17 and 18 of the Convention
204.  The applicant Government submitted that the facts of the case disclosed a violation of Articles 17 and 18 of the Convention, which provide:
Article 17
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
Article 18
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

205.  The applicant Government maintained that Article 17 had been violated since the respondent State limited the rights and freedoms of persons, mainly Greek Cypriots, to a greater extent than was provided for in the Convention. They further submitted that the respondent State applied restrictions to the Convention rights for a purpose other than the one for which they had been prescribed, in violation of Article 18 of the Convention.
206.  The Court considers that it is not necessary to examine separately these complaints, having regard to the conclusions which it has reached on the applicant Government’s complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.