CEDH · CASELAW;CLIN;ENG — 1 mars 2010

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Turkey (dec.) [GC] - 46113/99, 3843/02, 13751/02 et al. Decision 1.3.2010 [GC] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Failure to seek redress from Immovable Property Commission under Law no.   67/2005 in respect of deprivation of property in northern Cyprus in 1974: inadmissible   Facts – The applicants, who are all Cypriot nationals of Greek-Cypriot origin, complained, inter alia , that they had been deprived of the use of their property and/or access to their homes in northern Cyprus since that territory had come under the control of the “Turkish Republic of Northern Cyprus” (the “TRNC”) in 1974. The Turkish Government contested their complaints, notably on the grounds that the applicants had failed to exhaust domestic remedies, specifically those provided for under Law no.   67/2005. Law no. 67/2005 was passed by the “TRNC” authorities in response to the Court’s judgment in the pilot case of Xenides-Arestis v.   Turkey (no.   46347/99, 22   December 2005, Information Note no.   81), which required Turkey to introduce a remedy securing genuinely effective redress for violations of property rights within the territory. It set up a body known as the Immovable Property Commission (IPC), which had power to order the restitution or exchange of property or the payment of compensation. Claimants were required to submit title deeds or other proof of ownership. A right of appeal against the decisions of the IPC lay to the “TRNC” High Administrative Court. As of November 2009, the number of cases brought before the IPC stood at   433. Of these, 85   had been concluded, the vast majority by means of friendly settlement. In more than 70   cases, compensation had been awarded. Restitution had been ordered in 4   cases and exchange of property had been agreed in 2   others. Law – Article 1 of Protocol No.   1: The applicants argued that they were not required to exhaust the IPC remedy as, firstly, that requirement should not apply to them and, secondly, the remedy was not, in any event, effective. (a)     Applicability of the requirement to exhaust the IPC remedy to the applicants – The first issue was a chronological one: were the applicants required to exhaust a remedy that had come into being after they had lodged their applications? In holding that they were, the Court found that the applicants’ case fell within the exceptions to the rule that the reference point for determining whether domestic remedies had been exhausted was the date on which the application was lodged, the reason being that the remedies introduced by Law no.   67/2005 had been brought in specifically to redress grievances in similar cases that were pending before the Court. The Court went on to reject as artificial a submission that, since Law no.   67/2005 had been introduced by the “TRNC” authorities, it did not form part of Turkish domestic law. It further considered that the fact that the European Commission of Human Rights had in the inter-State case found there to be an administrative practice of ongoing violations of Greek-Cypriot property rights in the “TRNC” did not absolve the applicants from the exhaustion requirement: the situation had improved (both with the introduction of new legislation and a more favourable political climate) and it had to be open to governments to take steps to eliminate an administrative practice. The Court also rejected the argument that requiring exhaustion would lend legitimacy to an illegal occupation. Pending resolution of the international dimensions of the situation, it was of paramount importance for individuals to continue to receive protection of their rights on the ground on a daily basis. The right of individual petition under the Convention was no substitute for a functioning judicial system and framework for the enforcement of criminal and civil law. An appropriate domestic body, with access to the properties, registries and records concerned, was clearly the more appropriate forum for deciding complex matters of property ownership, valuation and financial compensation. Even if the applicants were not living as such under the control of the “TRNC”, the rule of exhaustion applied to them if there was an effective remedy available. That conclusion did not in any way put in doubt the view of the international community regarding the establishment of the “TRNC” or the fact that the Government of the Republic of Cyprus remained the sole legitimate Government. Nor did it amount to an indirect legitimisation of a regime unlawful under international law. Accordingly, the remedies available in the “TRNC”, in particular the IPC procedure, could be regarded as “domestic remedies” and no ground for exemption had been established. (b)     Effectiveness of the proposed remedy – The effectiveness of the IPC remedy was contested on several grounds, including the nature of the redress it afforded, an alleged lack of independence and impartiality, the adequacy of the compensation levels and an alleged lack of accessibility and efficiency. (i)     Nature of the redress : The Court rejected the suggestion that the IPC was a sham or smokescreen. The international-law position and the findings of the Court had been acknowledged by the internal “TRNC” authorities, in particular the “TRNC” Constitutional Court, which had insisted on the interpretation of the legislation so as to permit Greek-Cypriot owners to recover possession or receive compensation. Moreover, the Turkish Government no longer contested their responsibility under the Convention for the areas under the control of the “TRNC” and had, in substance, acknowledged the rights of Greek-Cypriot owners to remedies for breaches of their rights under Article   1 of Protocol No.   1. In any event, there was no basis to conclude that the adequacy of the remedy was affected by a lack of any formal indication of unlawfulness or breach of rights. In so far as criticism was made of an allegedly overly-restrictive approach to restitution to Greek-Cypriot owners, the Court reiterated that if restitutio in integrum was not possible, the member State had the alternative of paying compensation, even in cases of manifestly unlawful and flagrant expropriation. No difference of principle arose where the illegality was on an international level. Property was a material commodity which could be valued and compensated for in monetary terms. Similarly, an exchange of property could be regarded as an acceptable form of redress. Some thirty-five years after the event, it would risk being arbitrary and injudicious for the Court to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases except those in which there was material impossibility, without taking into account other considerations, in particular the position of third parties. It could not be within the Court’s task to impose an unconditional obligation on a government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. The Court had to leave the choice of implementation of redress for breaches of property rights to Contracting States, who were in the best position to assess the practicalities, priorities and conflicting interests on a domestic level even in a situation such as that pertaining in northern Cyprus. No problem therefore arose as regards the impugned discretionary nature of the restitutionary power under Law no.   67/2005. (ii)     Independence and impartiality : The IPC was made up of five to seven members, including two independent international members. The rules applicable to appointment and termination and conditions of employment were similar to those that applied to senior members of the “TRNC” judiciary. Persons occupying Greek-Cypriot property were expressly excluded from membership. The Court was not persuaded that the illegal nature of the regime under international law, the ongoing presence of Turkish military personnel or the “TRNC” President’s powers of appointment affected the subjective or objective impartiality or independence of the members of the IPC. (iii)     Compensation levels : With regard to quantum, the Court was not convinced on the evidence before it that the sums awarded under Law no.   67/2005 would automatically fall short of what could be regarded as reasonable compensation. (iv)     Accessibility and efficiency : The Court noted that although claimants were required to prove their ownership or title beyond reasonable doubt, the formulation of evidentiary standards in domestic law could not be taken in isolation from their application in practice and it was not apparent that this element has led to a significant number of claims being rejected. The requirement that claimants provide title deeds or proof of ownership, even if onerous in some cases, appeared to be necessary and unavoidable. The Court also took note of the budgetary provision made in Law no.   67/2005 for the payment of compensation and the guarantees given to the claimants and representatives concerning access to and from the northern area. Overall, it did not consider that the IPC procedure was unduly slow, onerous or inaccessible or that the applicants’ complaints relating to various procedural matters were justified. Nor did it find that assertions of undue pressure being put on claimants to settle had been made out. In any event, an appeal lay to the “TRNC” High Administrative Court if any claimant considered that there had been material unfairness or procedural irregularity. Accordingly, Law no. 67/2005 provided an accessible and effective framework of redress in respect of complaints about interference with property owned by Greek Cypriots. As the applicants had not made use of that mechanism, their complaints under Article   1 of Protocol No.   1 had to be rejected for non-exhaustion of domestic remedies. Conclusion : inadmissible (non-exhaustion of domestic remedies). Article 8: Law no. 67/2005 also enabled claimants who owned property to make claims to the IPC in respect of non-pecuniary damages, a category broad enough to encompass aspects of any loss of enjoyment of home. Accordingly, the Article   8 complaints of the property owning applicants also failed for non-exhaustion of domestic remedies as they had not brought such claims before the IPC. Conclusion : inadmissible (non-exhaustion of domestic remedies). One of the applicants was absolved from this exhaustion requirement as she had not made a property claim and thus had no realistic prospect of applying to the IPC. However, on the facts, her complaint that she had been denied access to her home was manifestly ill-founded as she had been living for almost her entire life elsewhere. The fact that she might inherit a share in the title to the property in the future was a hypothetical and speculative element, not a concrete tie. There had, therefore, not been any present interference with her right to respect for her home. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes