712
22.12.2005
CHAMBER JUDGMENT XENIDES-ARESTIS v.
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
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
The applicant owns half a share in a
plot of land in the area of Ayios Memnon,
in
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
On
The United Nations plan
for the reunification of
2. Procedure
and composition of the Court
The application was
lodged with the European Court of Human Rights on
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
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
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
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
[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
[3] This summary by the Registry does not bind the Court.