CASE OF DEMADES v. TURKEY

1. The case originated in an application (no. 16219/90) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr John (Ioannis) Demades (“the applicant”), on 24 January 1990.
2. The applicant was represented by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent, Professor Z. Necatigil.
3. The applicant alleged a violation of Articles 8 and 13 of the Convention and of Article 1 of Protocol No. 1.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. 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. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü, to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
6. By a decision of 24 August 1999 the Court declared the application admissible.
7. The applicant and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Cypriot Government, which had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 61 § 2).
8. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).
9. By a letter dated 2 July 2003 the Government informed the Court of the adoption and entry into force of the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus” and raised an additional preliminary objection in this connection.
10. The applicant is a Cypriot national of Greek-Cypriot origin, born in 1929 and living in Nicosia.
11. The applicant states that he is the registered owner of a plot of land (Registration number: 1071, Sheet / Plan: XII/20 E, Plot 122) situated on the sea front in the district of Kyrenia in northern Cyprus. He also maintains that he is the owner of a two-storey house, which he built on the above-mentioned plot of land. He submits that the house was fully furnished and equipped and that it was used by him and his family on a regular basis not only for weekend and holiday purposes but also as a home.
12. The applicant states that since 1974 he has been prevented by the Turkish armed forces from having access to his property, using and enjoying possession of it as well as developing it. In addition, he claims that according to evidence his home is currently occupied by officers and/or other members of the Turkish armed forces.
13. 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”, which entered into force on the same day.
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
14. The respondent Government in their submissions on the merits challenged the admissibility of the application relying on the following grounds: (1) inadmissibility ratione temporis and (2) ratione loci; (3) the manifestly ill ‑ founded nature of the application; and (4) the applicant's lack of locus standi.
15. Furthermore, in a letter dated 2 July 2003 the Government raised an additional preliminary objection concerning non-exhaustion of domestic remedies in the light of the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus” adopted on 30 June 2003.
16. The Court notes that the Government did not submit any observations at the admissibility stage of the proceedings, although they were given ample opportunity to do so. On that account, the Government may be considered in principle estopped from raising their objections to admissibility at this stage (Rule 55 of the Rules of Court; see inter alia, Amrollahi v. Denmark, no. 56811/00, § 22, 11 July 2002; and Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II).
17. In any event, and in so far as certain of the respondent Government's objections could be considered to have been raised at the admissibility stage by implication, having regard to their pleadings in the Loizidou case (judgments of 23 March 1995, (preliminary objections), Series A no. 310 and of 18 December 1996, (merits), Reports of Judgments and Decisions 1996-VI), the Court recalls that the first two objections were duly examined and rejected in the Loizidou v. Turkey case (op. cit.) and in the case of Cyprus v. Turkey ([GC], no. 25781/94, §§ 69-81, ECHR 2001-IV). It sees no reason to depart from its reasoning and conclusions on these two objections in the instant case.
18. As regards the third objection, the Court can only confirm its admissibility decision of 24 August 1999 holding that the applicant's complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 raise serious issues of fact and law, the determination of which requires an examination of the merits.
19. Concerning the applicant's alleged lack of victim status, the Court notes that the applicant was and continues to be the registered owner of the property in question and there is no doubt that he can be considered a "victim" within the meaning of Article 34 of the Convention.
20. Lastly, as regards the objection of non-exhaustion of domestic remedies raised by the Government in their letter of 2 July 2003 relating to the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”, the Court notes that this objection was raised after the application was declared admissible. It cannot, therefore, be taken into account at this stage of the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
21. The applicant in his application complained of an unjustified interference with the right to respect for his home in violation of Article 8 of the Convention. The relevant provision reads 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.”
22. The respondent Government reiterated that Turkey could not be held liable under the Convention for the acts of the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”). They further maintained that the applicant's claims needed to be considered in the context of the political situation in Cyprus and the de facto state of affairs on the island. In particular, they averred that the applicant was not restricted in his access to his home in the “TRNC” by the actions of Turkey or the Turkish armed forces, but by, inter alia, the existence of the United Nations Buffer zone.
23. In addition, they contended that the notion of “home” in Article 8 of the Convention could not be interpreted to “cover an area of the State where one has grown up and where the family has its roots but where one no longer lives” ( Loizidou v. Turkey (merits), op. cit., § 66). Thus, they submitted that, in view of the fact that the applicant was no longer living in the area where he alleged to have had his “home”, he could not have claimed to be a victim of a violation of Article 8 of the Convention.
24. Finally, the respondent Government maintained that the rights of individual members of one community in the territory presently administered by the other community were the subject of on-going inter-communal talks and the applicant's claim could only be resolved through negotiations aimed at a bi-zonal and bi-communal settlement of the Cypriot problem. In the meantime, such rights had to be restricted in the interests of security, public safety, for the prevention of disorder and for the protection of the rights and freedoms of others under Article 8 § 2 of the Convention.
25. The applicant disputed these arguments, relying essentially on the findings of the Commission in its Article 31 report ( Cyprus v. Turkey, no. 25781/94, Commission's report of 4 June 1999, reported in Cyprus v. Turkey, op. cit., §§ 265, 266 and 272) and of the Court in the Loizidou case (merits, op. cit.), rejecting similar arguments raised by Turkey.
26. The applicant stated that the house in question was his home in Kyrenia and that one day he intended to reside there permanently. He claimed that this house was used by him, his wife and children on a regular basis not only for weekend and holiday purposes but also as a home. He contended that, due to the proximity of the house in Nicosia, he personally treated it as a home and also as a refuge for making business plans. In addition, he stated that it was regularly used by him and his family to offer hospitality and entertainment to family and friends, dignitaries, especially members of foreign embassies and of the Cypriot Government, as well as foreign and local business associates. He stated that this house in Kyrenia was a real home in every sense of the word.
27. Finally, the applicant claimed that his home was under the control of the Turkish armed forces and was used by members of the latter. Accordingly, he maintained that his continuous inability to access and use his home as well as that fact that the house and his personal effects were used by the Turkish armed forces, constituted a continuous and unjustified interference with his right to respect for his family life and his home.
28. The Cypriot Government distinguished the instant case from that of Loizidou v. Turkey (merits, op. cit.) on the basis that the applicant in that case did not have her home on the property in question. They contended that, by necessary implication from the Court's approach in the aforementioned judgment, a violation of Article 8 of the Convention would occur where a property at issue had actually been the home. In this connection they relied on the findings of the Commission in its Article 31 report (reported in Cyprus v. Turkey, op. cit.) that during the period under consideration the refusal to allow the return of any Greek-Cypriot displaced person to their homes in northern Cyprus constituted a continuing violation of Article 8 of the Convention (§ 272).
29. As to the respondent Government's plea that the acts of the “TRNC” do not engage Turkey's responsibility under the Convention, the Court recalls that it has reaffirmed that this plea cannot be sustained in the light of the Loizidou judgments (preliminary objections and merits, op. cit.) and the judgment in the case of Cyprus v. Turkey (see paragraph 17 above).
30. The Court further recalls that in the aforementioned Cyprus v. Turkey case (op. cit.) it rejected justifications similar to those advanced by Turkey in the instant case for the interference with the rights of Greek-Cypriot displaced persons to return to their homes in the north (§ 174, see paragraph 36 below).
31. The Court notes that the applicant's house in Kyrenia was a fully furnished and completely equipped house, which he and his family made regular use of and in which they lived for substantial periods of time over the year. The house was treated by the applicant and his family as a home. It served inter alia as a holiday home and for providing hospitality and entertainment to relatives, friends and persons associated with the applicant's business activities.
32. The Court notes in this context that it may not always be possible to draw precise distinctions, since a person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home. Therefore, a narrow interpretation of the word “home” could give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of “private life”, by excluding persons who find themselves in the above situations.
33. The Court recalls that the Convention is a living instrument to be interpreted in the light of societal changes and in line with present-day conditions (see Cossey v. the United Kingdom, judgment of 27 September 1990, Series A no. 184, p. 14, § 35). Furthermore, it notes that in its relevant case-law it has adopted an extensive interpretation of the notion of “home” (see, inter alia, Société Colas Est and Others v. France no. 37971/97, §§ 40 ‑ 42, ECHR 2002 ‑ II; and Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, §§ 29-30).
34. Accordingly, the Court considers that in the circumstances of the present case, the house of the applicant qualified as “home” within the meaning of Article 8 of the Convention at the time when the acts complained of took place.
35. The Court observes that the present case differs from the Loizidou case (merits, op. cit.) since, unlike Mrs Loizidou, the applicant actually had a home in Kyrenia, albeit a secondary one.
36. The Court notes that since 1974 the applicant has been unable to gain access to and to use that home. In connection with this the Court recalls that, in its judgment in the case of Cyprus v. Turkey (op. cit., §§ 172-175), it concluded that the complete denial of the right of Greek-Cypriot displaced persons to respect for their homes in northern Cyprus since 1974 constituted a continuing violation of Article 8 of the Convention. The Court reasoned as follows:
“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.”
37. The Court sees no reason in the instant case to depart from the above reasoning and findings in the case of Cyprus v. Turkey (op. cit.). Accordingly, it concludes that there has been a continuing violation of Article 8 of the Convention by reason of the complete denial of the right of the applicant to respect for his home.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
38. The applicant contended that the continuous denial of access to his property in northern Cyprus and the ensuing loss of all control of it constituted a violation of Article 1 of Protocol No. 1, which reads 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.”
39. The respondent Government referred to the arguments used in their preliminary objections concerning imputability as well as those used in their submissions on Article 8 (see paragraphs 22-24 above) to dispute the merits of the complaint under Article 1 of Protocol No. 1 to the Convention.
40. Furthermore, the respondent Government disagreed with the findings of the Court in its judgments in the Loizidou case (op. cit.). They maintained that those judgments should not be considered as precedent for the purposes of this application. They explained, inter alia, that all the relevant facts, including the intervening acts by the Turkish-Cypriot authorities, were neither before the Commission when it drew up its Article 31 report (op. cit.) nor before the Court when it adopted its judgments. In this connection they stated that the Court, in reaching its judgments in the Loizidou case (op. cit.), disregarded a number of relevant fundamental issues such as the complex historical and political dimension of the case. They argued that the present case had to be decided on its own facts and in the light of recent developments in Cyprus.
41. Finally, the Government pleaded that, even assuming an issue could arise under Article 1 of Protocol No. 1, the control of the use of property by the “TRNC” authorities was justified by the general interest.
42. The applicant and the Cypriot Government disputed these arguments. They relied on the points made on the applicant's side in the Loizidou case (merits, op. cit.) and the reasons given by the Court in that judgment for rejecting the arguments raised by Turkey, arguments which, they maintained, were simply repeated in the instant case.
43. The Court recalls that it has duly considered and rejected the arguments advanced by the respondent Government in its examination of Turkey's preliminary objections and its submissions in relation to Article 8 of the Convention (see paragraphs 17, 29 and 30 above).
44. It further recalls that in the aforementioned Loizidou v. Turkey case (merits, op. cit.), it rejected justifications similar to those advanced by Turkey in the instant case for the interference with Mrs Loizidou property rights. The Court reasoned as follows:
“63. ... 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. Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred, be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it clearly falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment.
64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the "TRNC" and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant's property rights which is imputable to Turkey.
It has not, however, 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 intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.”
45. In the case of Cyprus v. Turkey (op. cit.) the Court confirmed the above conclusions (§§ 187 and 189):
“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.
189. .. 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.”
46. The Court sees no reason in the instant case to depart from the conclusions which it reached in the Loizidou and Cyprus v. Turkey cases (op. cit.). Accordingly, it concludes that there has been and continues to be a violation of Article 1 of Protocol No. 1 to the Convention by virtue of the fact that the applicant is denied access to and control, use and enjoyment of his property as well as any compensation for the interference with his property rights.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
47. The applicant complained of lack of an effective remedy in breach of Article 13 of the Convention, which reads as follows:
“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.”
48. The Court notes that the applicant has submitted no pleadings on this point, including on the issue of applicability. It considers therefore that it is not necessary to examine this complaint.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
49. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
50. The applicant claimed compensation for pecuniary loss amounting to 226,516 Cypriot pounds (CYP). He relied on an expert's report in assessing the value of his loss which included the loss of annual rents collected or expected to be collected from renting the property, plus interest from the date on which such rents were due until the day of payment. The rents claimed were for the period dating back to January 1987, when the respondent Government accepted the right of individual petition, until January 2000. The applicant did not claim compensation for any purported expropriation.
51. Further, the applicant claimed compensation for non-pecuniary damage in the sum of CYP 120,000. He detailed his claims as follows:
(a) CYP 30,000 in respect of the continuing violation of his property rights under Article 1 of Protocol No. 1 from January 1987 when the respondent Government accepted the right of individual petition until January 2000. The applicant stated that this sum was calculated on the basis of the sum awarded by the Court in the Loizidou case (Article 50, op. cit.) by way of compensation for non-pecuniary damage, taking into account, however, that the period of time for which the damage was claimed in the instant case, was longer than that claimed in the Loizidou case (op. cit.).
(b) CYP 90,000 in respect of the continuing violation of his right to respect for his home under Article 8 of the Convention, which he considered as being more serious than the violation of his property rights under Article 1 of Protocol No. 1.
52. Finally, the applicant reserved his right to increase, on a "pro-rata" basis, the amounts he claimed both as pecuniary and non-pecuniary damage.
53. The respondent Government did not address the applicant's claims in their observations. They confined themselves to a general statement that the question of compensation for Greek-Cypriot property in northern Cyprus and Turkish-Cypriot property in southern Cyprus had to be settled through negotiations and inter-communal talks.
54. In the circumstances of the case, the Court considers that the question of the application of Article 41 in respect of pecuniary and non ‑ pecuniary damage is not ready for decision. The question must accordingly be reserved and the subsequent procedure fixed with due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1).
55. Finally, the applicant sought reimbursement of costs and expenses incurred in the proceedings before the Convention institutions amounting to CYP 1663.80. He detailed his claims as follows (and with reference to invoices):
(a) CYP 950 for fees and expenses, covering work carried out by his lawyer in Cyprus in the proceedings before the Commission and the Court;
(b) CYP 600 for the costs of an expert report assessing the value of the property at issue;
(c) CYP 60 for various expenses (faxes, postage, etc); and
(d) interest at the rate of 8 % per annum.
56. The Government did not address the applicant's claims in their observations.
57. The Court considers that the amounts claimed up until this stage of the procedure (see paragraph 45 above) can be considered to have been reasonably and necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece, just satisfaction, [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI). It awards the amount claimed in full.
58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Dismisses by six votes to one the Government's preliminary objections;