PROCEDURE

The case originated in an application (no. 46347/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mrs Myra Xenides-Arestis (“the applicant”), on 4 November 1998.

The applicant was represented by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent, Prof. Dr Z. Necatigil.

The applicant alleged a continuing violation of Article 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14. In particular, she maintained that the Turkish military forces were preventing her from having access to, using and enjoying her home and property in the area of Famagusta, in northern Cyprus. She submitted that this was due to the fact that she was Orthodox and of Greek-Cypriot origin.

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

A hearing on the admissibility of the application took place in the Human Rights Building, Strasbourg, on 2 September 2004.

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1) but this case remained with the Chamber constituted within former Section III.

By a decision of 14 March 2005 the Court declared the application admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1) and the Government sent comments on the applicant’s claims for just satisfaction. The Government of Cyprus, who had made use of their right to intervene under Article 36 of the Convention, did not submit any comments on the parties’ observations.

THE FACTS

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

The applicant owns property in the area of Ayios Memnon (Esperidon Street), in the fenced-up area of Famagusta, that she acquired by way of a gift from her mother. In particular, she owns half a share in a plot of land (plot no. 142, sheet/plan 33/29) with buildings thereon, consisting of one shop, one flat and three houses. One of the houses was her home, where she lived with her husband and children, whereas the rest of the property was used by members of the family and/or rented out to third parties. Furthermore, the applicant partly owns a plot of land (plot no. 158, sheet/plan 33/29) with an orchard (her share being equivalent to 5/48). This was registered in her name on 31 January 1984. The rest of the property is owned by other members of her family.

In August 1974 she was forced by the Turkish military forces to leave Famagusta with her family and abandon their home, property and possessions. Since then she has been prevented from having access to, using and enjoying her home and property, which are under the occupation and the control of the Turkish military forces. According to the applicant, only the Turkish military forces have access to the fenced-up area of Famagusta.

On 23 April 2003 new measures were adopted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. On 30 June 2003 the “Parliament of the TRNC” enacted “Law no. 49/2003” on compensation for immovable properties located within the boundaries of the “TRNC”, which entered into force on the same day. On 30 July 2003, under Article 11 of this “Law”, an “Immovable Property, Determination, Evaluation and Compensation Commission” was established in the “TRNC”. The rules of the commission were published in the “TRNC Official Gazette” on 15 August 2003 and the commission was constituted by a decision of the “TRNC Council of Ministers” published in the aforementioned gazette on 18 August 2003.

On 24 April 2004 two separate referendums were held simultaneously in Cyprus on the Foundation Agreement–Settlement Plan (“Annan Plan”) which had been finalised on 31 March 2004. Since the plan was approved in the Turkish-Cypriot referendum but not in the Greek-Cypriot referendum, the Foundation Agreement did not enter into force.