Myra Xenides- Arestis v. Turkey

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18 XENIDES-ARESTIS v. TURKEY DECISIONConcerning the latter, the Court notes that the Annan Plan would havebeen a significant development and break-through in inter-communalnegotiations had it come into force. Consequently no change has occurredsince the adoption of the above-mentioned judgments by the Court whichwould justify a departure from its conclusions as to <strong>Turkey</strong>'s jurisdiction. Inthis connection, the Court points out, firstly, that the fact that the twocommunities were treated as having equal status in the negotiations leadingup to the referendums, does not entail recognition of the “TRNC” or conferstatehood thereupon. Secondly, the Court observes that the respondentGovernment continue to exercise overall military control over northernCyprus and have not been able to show that there has been any change inthis respect. Thirdly, the fact that the Greek-Cypriots rejected the AnnanPlan does not have the legal consequence of bringing to an end thecontinuing violation of the displaced persons' rights for even the adoption ofthe plan would not have afforded immediate redress.In the light of the above, the Court considers that the Government's pleason inadmissibility on the grounds of lack of jurisdiction ratione temporis andratione loci must be dismissed.2. As to the victim status of the applicant(a) The respondent GovernmentThe respondent Government point out that the property allegedlyowned by the applicant is listed in the books of the Turkish Moslemreligious trust (vakf) as having being dedicated to the religious trust inperpetuity in accordance with the principles of Evkaf (Ahkamül Evkaf), the1960 Constitution of Cyprus and the Evkaf and Vakfs Laws (Cap. 337 ofthe Laws of Cyprus). Under the latter law, following the registration of adeed of vakf, the relevant property cannot be alienated or transferred eitherby the dedicator or the beneficiary nor may it be inherited. Consequently,they maintain that the transfer of this property to the applicant was unlawfuland therefore, null and void. Finally, they note that the EvkafAdministration of Cyprus operating in the “TRNC” has taken legalmeasures in respect of vakf properties which have been unlawfullyoccupied, including the property referred to in the present application, andintends to take further legal measures in respect thereof. Thus, they submitthat the Court should not take any decisions that would prejudice thedetermination by domestic courts of the issues relating to title of theproperty.(b) The applicantThe applicant disputes the arguments of the respondent Governmentand asserts that their allegation that the property belongs to a religious trust
XENIDES-ARESTIS v. TURKEY DECISION 19known as vakf is false. She relies on the relevant copies of the certificates ofownership proving that she is the owner of the property at issue. She arguesthat although the Government are in control of the records of the FamagustaLand Registration Office, they have failed to substantiate their allegationsand have not produced the relevant Land Registers. In addition, she claimsthat the document on the special nature of certain properties under religioustrust annexed to the respondent Government's observations is irrelevant tothe present proceedings. Finally, the applicant notes that in her observationsdated 5 September 2000 she had stated that she had acquired the property byway of gift from her mother. However, the respondent Government did notcontest the applicant's ownership of the property in their first observationson admissibility and thus, she contends that they should be prevented fromraising this argument on the occasions additional questions raised by theCourt that did not cover this point.(c) The Cypriot GovernmentThe Cypriot Government submit that the existence of these allegedpending proceedings by the Evkaf Administration of Cyprus does notpreclude the Court from deeming admissible, and passing judgment upon,whether the applicant's rights under Article 1 of Protocol No. 1 have beenviolated. In this connection they maintain that the concept of “possessions”in that provision has an autonomous meaning which is not limited toownership of physical assets; it is sufficient to show that the applicant has alegal right to some benefit. In their opinion, it is well established by theCourt's jurisprudence that there may be a right to the enjoyment ofpossessions protected by Article 1 even where ownership is in dispute(relying on Iatridis v. Greece [GC], no. 31107/96, §§ 54-55,ECHR 1999-II).(d) The Court's assessmentThe Court observes that, under its case-law, for the purposes ofArticle 34 of the Convention, the word “victim” means the person directlyaffected by the act or omission in issue (see Balmer-Schafroth and Othersv. Switzerland, judgment of 26 August 1997, Reports 1997-IV, § 26).The Court notes that the applicant has provided the Court with officialcertificates of ownership from the Department of Lands and Surveys of theRepublic of Cyprus proving that she is indeed the owner of the relevantproperty. It points out that the respondent Government have notsubstantiated their arguments disputing the applicant's victim status.Therefore, the Court considers that the applicant can claim to be a“victim” within the meaning of Article 34 of the Convention and dismissesthe respondent Government's objection of inadmissibility in this respect.
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Myra Xenides- Arestis v. Turkey

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