Myra Xenides- Arestis v. Turkey

More documents

Recommendations

Info

12 XENIDES-ARESTIS v. TURKEY DECISIONexercise of its right to self-determination. As a result of the interveninglegislative, administrative and executive acts of the “TRNC”, the applicant'sproperty has been expropriated. Turkey can neither legislate in respect ofmatters of property in northern Cyprus, nor exercise control over suchproperty situated outside its jurisdiction. The Turkish forces are in northernCyprus for the security of the Turkish Cypriots and do not exercise anygovernmental authority.The respondent Government maintain that the presumption of overallcontrol on which the Court based its judgments in the cases of Loizidouv. Turkey and Cyprus v. Turkey is not tenable on the facts of the presentcase. In their view these cases have not created a res judicata that wouldpreclude a reappraisal of relevant issues in the instant application. Dueprocess and procedural fairness require that the applicant shows beyondreasonable doubt actual or overall control by Turkey over northern Cyprus.However, in their view, the applicant has not been able to do this. In thisconnection, the respondent Government rely, inter alia, on the Court'sjudgment in the case of Ilaşcu and Others v. Moldova and Russia ([GC],no. 48787/99, ECHR 2004-...) and its decision in the case of Banković andOthers v. Belgium and 16 Other Contracting States ((dec.) [GC],no. 52207/99, ECHR 2001-XII).Furthermore, the respondent Government aver that the applicant'sproperty claim can only be resolved within the framework of the island'sinter-communal talks and on the basis of a bi-zonal settlement. In thiscontext they argue that the Annan Plan and the circumstances relied upon bythe UN Secretary-General in its formulation clearly demonstrate theexclusive authority of the “TRNC” respondent Government over the peopleand territory of northern Cyprus. They state that it is implicit in the AnnanPlan that Turkey does not, directly or indirectly, control the policies andconduct of the “TRNC” respondent Government and thus, that the latter isnot a subordinate local administration of Turkey in northern Cyprus. Theindependence of the “TRNC” Government is cogently evidenced at everystage of the evolution of the UN Secretary-General's proposals by themanner in which he involved the Turkish-Cypriot side in the negotiationsleading up to his plan as well as from the text of the plan. They refer tocertain features of the plan in this respect and to statements made byrepresentatives of various Governments and international organisations.Although the respondent Government admit that the texts of the planthey refer to, do not, by reason of their rejection by the Greek Cypriots,have formal binding force, they emphasise that their content reflects the UNSecretary-General's assessment, widely endorsed by the internationalcommunity, of the fair balance to be struck in the resolution of the Cyprusconflict as well as the irreversible and accepted factual position on theisland, particularly the fact that the Turkish-Cypriot people were treated asan independent entity of equal status with the Greek-Cypriot people.
XENIDES-ARESTIS v. TURKEY DECISION 13Thus, the respondent Government conclude that the Annan Plan reflectsan acknowledgment that Turkey does not have “jurisdiction” in northernCyprus and consequently, that the pending cases cannot be regarded asfalling within the terms of Article 1 of the Convention. They stress thatacceptance of the view that northern Cyprus does not fall within theConventional jurisdiction of Turkey would not lead to internationalrecognition of the “TRNC”, since such recognition could only stem frompositive action by states, individually or collectively. Furthermore, in theirview, such an approach would not create a vacuum in the system of humanrights protection, the possibility of which evidently concerned the Court inCyprus v. Turkey (op. cit.). This is evident from the establishment of aneffective remedial framework under “TRNC” law coupled with otherdevelopments affirming the responsibility of the “TRNC” for these issues asopposed to Turkey and the recognition and application of the Convention inthe territory of northern Cyprus that will be relevant to the operation of theCommission.Alternatively, the respondent Government contend that if the Court wereto conclude that northern Cyprus remains subject to the jurisdiction ofTurkey and that cases like the instant one are admissible, it will have toaddress the merits of each case. In such circumstances, they note that theCourt should bear in mind that the property settlement proposed in theAnnan Plan constituted the considered view of the UN Secretary-General,endorsed by the international community, that the reciprocal arrangementsset out therein for the settlement of outstanding property claims would be afair and reasonable resolution of that aspect of the dispute as part of anoverall settlement.(b) The applicantThe applicant disputes the submissions of the respondent Governmentrelying essentially on the reasons given by the Court for rejecting similarobjections raised by Turkey in its judgments in Loizidou v. Turkey(preliminary objections and merits, op. cit.) and Cyprus v. Turkey (op. cit.)and the conclusions of the European Commission on Human Rights in itsreport of 4 June 1999 (reported in Cyprus v. Turkey, [GC], no. 25781/94,ECHR 2001-IV). She emphasises that there has not been any materialchange of facts since the adoption of the above judgments and that Turkeycontinues to exercise effective control over the northern part of Cyprus.Furthermore, she points out that in accordance with the report of the UNSecretary-General, the respondent Government are responsible for the statusquo in the fenced-up area of Varosha (Famagusta) where the applicant'shome and property are situated.The applicant submits that the Annan Plan as such, whether or not inforce, as a matter of general principle can have no effect on the powers andresponsibilities of the Court, the application of the Convention or the Rules
Page 1 and 2: CONSEILDE L’EUROPECOUNCILOF EUROP
Page 3 and 4: XENIDES-ARESTIS v. TURKEY DECISION
Page 11: XENIDES-ARESTIS v. TURKEY DECISION
Page 47: XENIDES-ARESTIS v. TURKEY DECISION

Myra Xenides- Arestis v. Turkey

Create successful ePaper yourself

Delete template?

Save as template?