CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 mars 2005

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } THIRD SECTION [1] DECISION AS TO THE ADMISSIBILITY OF Application no. 46347/99 by Myra XENIDES-ARESTIS against Turkey The European Court of Human Rights (Third Section), sitting on 2   September 2004 and 14 March 2005 as a Chamber composed of:   Mr   G. Ress , President ,   Mr   I. Cabral Barreto ,   Mr   L. Caflisch ,   Mr   R. Türmen ,   Mr   J. Hedigan ,   Mr   K. Traja ,   Mrs   A. Gyulumyan, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 4 November 1998, Having regard to the observations submitted by the respondent Government and the observations in reply from the applicant, Having regard to the replies of the respondent Government and of the applicant (seven sets of observations) and those from the Cypriot Government (three   sets of observations), acting as a third-party intervener, to the Court's questions put on 3 July 2003 and 13 May 2004 respectively, and to their comments, Having regard to the parties' oral submissions at the public hearing in the Human Rights building, Strasbourg, on 2 September 2004, Having deliberated, decides as follows: THE FACTS The applicant, Mrs Myra Xenides-Arestis, is a Cypriot national of Greek-Cypriot origin, who was born in 1945 and lives in Nicosia. The applicant is represented by Mr A. Demetriades, a lawyer practising in Nicosia. At the oral hearing of 2 September 2004, the applicant was represented by Mr A. Demetriades and Mr I. Brownlie, CBE, QC assisted by Mrs   J.   Loizidou. The respondent Government were represented by Prof. Dr Z. Necatigil, Mr D. Bethlehem, QC, Ms P. Nevill, Prof. Dr R. Ergeç, Mr E. Apakan, Mr   D. Polat, Mr M. Özmen, Mr M. Gülşen and Mr I. Kocayiğit. A statement was read out by Mr D. Bethlehem on behalf of Prof. Sir Elihu Lauterpacht, CBE, QC, also representing the respondent Government, who was not present at the hearing. The Cypriot Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by their agent Mr   S.   Nikitas, Attorney-General of the Republic of Cyprus, Lord Lester of Herne Hill, QC, Mrs S. M. Joannides, Ms S. Fatima and Mrs M. A. Stavrinides. The applicant was also present. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant claims to partly own property in the area of Ayios Memnon (Esperidon street), in the fenced-up area of Famagusta, that she acquired by way of gift from her mother. In particular, she states that she owns half a share in a plot of land with buildings thereon, which consist of one shop, one flat and three houses. She maintains that one of the houses was her home where she lived with her husband and children whereas the rest of the property was used by members of the family and/or rented out to third parties. Furthermore, the applicant states that she partly owns a plot of land with an orchard (her share being equivalent to 5/48). The rest is owned by other members of her family. The applicant submits that in August 1974 she was forced with her family by the Turkish military forces to leave Famagusta and abandon their home, property and possessions. She states that since then she has been prevented from having access to, from using and enjoying her home and property, which are under the occupation and the control of the Turkish military forces. According to the applicant, only the Turkish military forces have access to the fenced-up area of Famagusta. On 23 April 2003, new measures were adopted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. On 30 June 2003 the “Parliament of the TRNC” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus” (“TRNC”) which entered into force on the same day (“Law no. 49/2003”). On 30 July 2003, under Article 11 of this “Law”, an “Immovable Property Determination Evaluation and Compensation Commission” was established in the “TRNC”. The rules of the commission were published in the “TRNC Official Gazette” on 15   August 2003 and the commission was constituted by a decision of the “TRNC Council of Ministers” published in the aforementioned gazette on 18 August 2003. On the basis of this decision the following commission members were appointed: Mr. S Dalioğlu as President, Mr K. Fuat as Deputy President, Mr Y. Boran, Mr G. Silman, Mr   H. Giray, Mr N. Yazman and Mr T. Gazioğlu as members. By letter dated 16 June 2004, the Government informed the Court that the deadline for submitting applications to the abovementioned commission was extended for one more year (until 30 June 2005). On 24 April 2004 two separate referendums were held simultaneously in Cyprus on the Foundation Agreement–Settlement Plan (“Annan Plan”) which had been finalised on 31   March 2004. Since the plan was approved in the Turkish-Cypriot referendum but not in the Greek-Cypriot referendum, the Foundation Agreement did not enter into force.   B.     Relevant domestic law 1.     “Constitution of the Turkish Republic of Northern Cyprus” (the “TRNC”) of 7 May 1985 Article 159 (1) (b) in so far as relevant provides as follows: “All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and ... situated within the boundaries of the TRNC on 15 November 1983, shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.” Article 159 (4) reads as follows: “In the event of any person coming forward and claiming legitimate rights in connection with the immovable properties included in subparagraphs (b) and (c) of paragraph (1) above [concerning, inter alia , all immovable properties, buildings and installations which were found abandoned on 13 February 1975], the necessary procedure and conditions to be complied with by such persons for proving their rights and the basis on which compensation shall be paid to them, shall be regulated by law.” 2.     “Law as to Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus, which are within the Scope of Article 159, paragraph (4) of the Constitution” (Law no. 49/2003) “The Republican Assembly of the Turkish Republic of Northern Cyprus enacts as follows: Short title 1. This Law may be cited as the Law as to Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus, which are within the Scope of Article 159, paragraph (4) of the Constitution. Interpretation 2. In this Law unless the context otherwise requires, “Ministry” means the Ministry Responsible for Housing Affairs. “Entitled person” means a person who has a legal claim in respect of immovable property coming within the scope of Article 159, paragraph (4) of the Constitution. “Commission” means a commission constituted under Article 11 of this Law. “Legal right” means the right to immovable property which is within the scope of Article 159, paragraph (4) of the Constitution. “Immovable property” means immovable property within the scope of Article 159, paragraph (4) of the Constitution. Purpose 3. The purpose of this Law is to regulate the necessary procedure and conditions to be complied with by persons to prove their legal rights which they claim in respect to immovable properties within the scope of Article 159, paragraph (4) of the Constitution of the Turkish Republic of Northern Cyprus as well as the basis on which compensation shall be paid to such persons. Application 4.(1) Natural and legal persons who claim legal rights to immovable properties specified in this Law may bring a claim by way of an application, in person or through a legal representative, to the Immovable Property Determination, Evaluation and Compensation Commission constituted under the provisions of this Law, requesting compensation for such property. Such an application must be made within a period of one year from the entry into force of this Law. Applications made to the Commission shall be subject to the Rules made under the Civil Procedure Law and, notwithstanding any other provision to the contrary in any law or legislative instrument, only a fee of 100,000,000 TL (one hundred million Turkish Liras) shall be paid for each application. (2) The entry and exit in and out of the Turkish Republic of Northern Cyprus of persons, their legal representatives and agents applying to the Commission with a claim in virtue of the application of this Law, as well as of any person to be heard on their behalf, shall be free. Production of Documents to the Commission 5. For Commission procedures specified in this Law, original documents, or copies of documents certified by a certifying officer for purposes of control together with the original documents which the parties wish to submit may be produced or filed with the Commission by the parties. Burden of Proof and Factors as Basis of Decision 6. In proceedings before the Commission the burden of poof shall rest with the applicant who must satisfy the Commission as to the following in order that a decision may be taken in his favour: (1) The immovable property in respect of which legal rights are claimed is or can be no other than that claimed in the petition. (2) The immovable property to which the applicant claims legal rights was registered in his name before 20 July 1974 and/or he is the legal heir of the person in whose name the immovable property was so registered. (3) There are no entitled persons according to the Land Registry records other than those claiming legal rights under this Law. (4) Compensation to be paid to the entitled person represents the total of the market value of the immovable property on 20 July 1974 together with compensation for loss of use. (5) The immovable property in respect of which legal rights are claimed was not subject to a mortgage and/or to any charge or restraint imposed by virtue of a judgment or order of a competent court before 20 July 1974, if otherwise, it must be clearly stated in whose favour such liabilities are, the amount of debt and the rate of interest, the date on which the debt has been incurred and the amount, and if part payment has been made the date and amount thereof. Respondent Party to Applications 7. The respondent party to applications to be lodged under this Law may be the Ministry and/or the Office of the Attorney-General representing the Ministry. Hearing the Parties and taking of the Decision 8. The Commission shall, after having heard the arguments of the parties and witnesses, and examined the documents submitted, decide that the applicant shall receive just and equitable compensation by taking into consideration the following matters: (1) (A) If the immovable property is a building its market value on 20 July 1974, taking into consideration the date of its construction. (B) Loss of income and increase in value of the immovable property between 1974 and the date of payment. (C) Whether the entitled person is in possession of any immovable property in South Cyprus owned by citizens of the Turkish Republic of Northern Cyprus. (D) Whether the applicant is receiving income from such property; if so, the amount of such income; whether such person is paying rent in respect of immovable property in his possession in South Cyprus which is owned by any citizen of the Turkish Republic of Northern Cyprus; if so, the amount and recipient of rent. (2) Rules may be made by the Commission for the better implementation of the provisions of this section, which shall enter into force upon approval by the Council of Ministers and publication in the Official Gazette. Right to Apply to the Administrative Court 9. Parties have the right to judicial review against the decisions of the Commission. The provisions in this respect shall apply mutatis mutandis subject to decisions of the High Administrative Court. Loss of Ownership upon Award of Compensation 10. (1) Entitled persons who receive compensation in virtue of the provisions of this Law, shall, on no condition claim right of ownership of immovable property for which they have received compensation or claim compensation under any other basis whatsoever. (2)Persons who claim legal rights under this Law may be compensated, should they agree, by being granted the title of immovable property which remained in the South and had been renounced in favour of the State in accordance with the provisions of the Housing, Allocation of Land and Property of Equal Value Law. (3) The Commission may prepare rules for the better implementation of this Law which shall be subject to approval of the Council of Ministers and shall be published in the Official Gazette. Composition of Immovable Property Determination Evaluation and Compensation Commission 11. (1) To ensure the implementation of this Law a sufficient number of Immovable Property Determination, Evaluation and Compensation Commissions shall be established upon the proposal of the Ministry and approval of the Council of Ministers which shall be composed of a Chairman, a Deputy Chairman, a minimum of 5 or a maximum of 7 members, whose qualifications are specified below, and the relevant decision shall be published in the Official Gazette. (A) Chairmen, Deputy Chairmen and Members of the Commission may be appointed from among lawyers qualified for appointment as a Supreme Court judge or from among persons with experience in public administration and evaluation of property. (B) The salary of the Chairman of the Commission is equal to that received by a Supreme Court judge at the time of his initial appointment. Salaries of other members are equivalent to the amount prescribed for the salary scale 18A. (2) The Commission shall convene by a two-third majority of the total number of members and shall take decisions by simple majority of the members attending the meeting, including the Chairman. (3) The term of office of a member not participating in the Commission meetings without a valid reason (ill health, official duty abroad, and the like) for more than three times may be terminated upon the proposal of the Ministry and decision of the Council of Ministers. In other cases, the conditions for the termination of term of office of a member of the Commission shall be the same as those applied to a Supreme Court judge. (4) A secretariat shall be established in order to carry out the clerical and administrative work of the Commission. Sufficient number of personnel shall be employed in the secretariat upon the proposal of the Chairman of the Commission and the necessary authorisation of the Ministry of Finance. Employment of personnel under this section shall be on a contractual basis. The number of personnel employed in this manner shall be 10. Provided that if the Chairman of the Commission is of the opinion that the secretariat is not able to carry out its legal obligations within a reasonable period of time, he shall have the authority to employ an additional number of personnel on contract, subject to the authorisation of the Ministry of Finance. (5) All employees of the Commission, including the Chairman and members, shall be employed as long as their service is required and subject to conditions determined by the Council of Ministers, notwithstanding any provision to the contrary in any other law relating to duration of service, age limit, duration of contract, renewal of contract and condition of non-retirement from public service. (6) The Chairman and members of the Commission shall not hold any other office during their term of office. (7) Decisions taken shall be communicated to those concerned after having been signed by the Chairman and at least one member. Duration of Term of Office of the Chairman and Members of the Commission 12. The Chairman and members of the Commission established in accordance with the provisions of this Law shall be appointed for a period of 5 years. At the end of this period the Chairman and members may be re-appointed subject to the same procedure. The Chairman and members of the Commission shall carry out their duties objectively and independently during their term of office which may be terminated before the end of term only subject to the provisions of section 11, above. Powers and Duties of the Commission 13. The Commission shall have the following powers and duties: (1) To examine and determine applications in respect of compensation made under this Law. (2) To specify the manner and the procedure of payment of compensation. (3) To take necessary measures and decisions in order to finalise procedures concerning the amount of compensation to be paid to entitled persons under this Law. (4) The Commission, may, in carrying out its duties and exercise of the powers mentioned above, if it deems necessary, request written or oral testimony or hear witnesses. (5) The Commission may require that written or oral testimony of any witness to be given for the purpose of solving any problem that may arise in the application of this Law be under oath or by way of a declaration. Such evidence on oath or declaration shall be the same as that required for testimony before a court. (6) To summon any person residing in the Turkish Republic of Northern Cyprus to attend any meeting of the Commission in order to give testimony or produce any document in his possession and to be examined as a witness. (7) To compel any person to give evidence or to produce a document when such person refuses to do so whether under oath or by way of declaration, if the person concerned does not offer any satisfactory excuse to the Commission for such refusal. Provided that, no witness may be compelled to answer any incriminating question and no legal proceedings may be commenced for his refusal to do so. (8) The Commission may decide that expenses shall be paid to any person summoned to give evidence in virtue of the provisions of this Law. (9) In order to facilitate the implementation of this Law, the Commission may, subject to the approval of the Council of Ministers, make rules to be published in the Official Gazette. Binding Effect of the Decisions of the Commission 14. The decisions of the Commission have binding effect and are of executory nature as those of the judiciary. Such decisions shall be implemented without delay upon communication to the authorities concerned. Offences and Penalties 15. It is an offence to refuse, without lawful excuse, to produce any document or information required by the Commission in accordance with the provisions of this Law, or to fail to appear before the Commission upon being legally summoned to do so, or to refuse to give evidence, and any such person shall upon conviction be liable to a fine of 2,000,000,000 TL (two billion Turkish Liras) or imprisonment for one year, or both. Procedure and Principles Applicable to Witnesses before the Commission 16. The processes to be carried out in accordance with the provisions of this Law, service of writs of summons to be issued to witnesses, the procedure for attendance before the Commission and that relating to the hearing shall be subject to the provisions of the Civil Procedure Law. Criminal Responsibility 17. Members and other personnel of the Commission employed under this Law shall bear criminal responsibility in respect of their acts on the same basis as public servants and proceedings may be brought against them under the Criminal Law or other laws. Payment of Compensation 18. The Ministry responsible for Financial Affairs shall make a provision under a separate item in the Budget Law for each year to enable and to effect payment of compensation awarded by the Commission and other expenses which have been incurred in virtue of the application of this Law. Reservation of Rights of Persons who have Not Applied to the Commission 19. The period of time specified in section 4 may be extended only once for a maximum of one year by decision of the Council of Ministers based on reasonable grounds. Rights and benefits of entitled persons to immovable properties located within the boundaries of the Turkish Republic of Northern Cyprus who choose not to apply to the Commission to claim compensation within the period prescribed in section 4 or during the extended period shall be determined and dealt with in accordance with the framework and principles laid down in a binding political settlement regarding the Cyprus issue, including the property issue, to be reached after taking into consideration the public interest, housing and rehabilitation needs of refugees and the protection of public order. Non-prevention of Proceedings under Certain Laws 20. Nothing in this Law shall prevent any proceedings to be carried out under the provisions of the Requisition of Property Law of 1962, and the Compulsory Acquisition of Property Law of 1962. Execution of the Law 21. This Law shall be executed by the Ministry Responsible for Housing Affairs on behalf of the Council of Ministers. Entry into force 22. This Law shall enter into force upon its publication in the Official Gazette.” COMPLAINTS The applicant complains of a continuing violation of her rights under Articles 8 of the Convention and 1 of Protocol No. 1 that since August 1974 she has been deprived of her property rights, all her property being located in the fenced-up area of Famagusta which is under the occupation and the control of the Turkish military forces. She maintains that the latter prevent her from having access to, from using and enjoying her home and property. She submits that this is due to the fact that she is Orthodox and of Greek-Cypriot origin, contrary to Article 14 of the Convention. THE LAW The applicant complains of a continuing violation of her rights under Articles 8 of the Convention and 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. The relevant provisions read as follows: Article 8 of the Convention “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.” Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 “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.” The respondent Government dispute the admissibility of the present case on several grounds: 1.     Jurisdiction ratione temporis and ratione loci (a)     The respondent Government The respondent Government reject the applicant's complaints and disagree with the findings of the Court in its judgments in the cases of Loizidou v.   Turkey (preliminary objections, judgment of 23   March 1995, Series   A no. 310; merits, judgment of 18   December 1996, Reports of Judgments and Decisions 1996 ‑ VI; Article 50, judgment of 29   July 1998, Reports 1998 ‑ IV) and Cyprus v. Turkey , ([GC], no.   25781/94, ECHR   2001 ‑ IV). They argue that the facts of the present application predate the Turkish Government's acceptance of the Court's jurisdiction on 22 January 1990. They contend that the process of the "taking" of property in northern Cyprus started in 1975 and ripened into an irreversible expropriation by virtue of Article 159 (1) (b) of the “TRNC” Constitution of 7 May 1985, well before Turkey's recognition of the Court's compulsory jurisdiction. The Court is therefore incompetent ratione temporis to examine the applicant's complaints. The respondent Government dispute Turkey's liability under the Convention relying inter alia on the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (nos. 15299 and 15300/89, Commission's report of 8 June 1993, Decisions and Reports (DR) 86, p. 4). In general, the respondent Government submit that the acts complained of are imputable exclusively to the “TRNC”, an independent and sovereign state established by the Turkish-Cypriot community in the exercise of its right to self-determination. As a result of the intervening legislative, administrative and executive acts of the “TRNC”, the applicant's property has been expropriated. Turkey can neither legislate in respect of matters of property in northern Cyprus, nor exercise control over such property situated outside its jurisdiction. The Turkish forces are in northern Cyprus for the security of the Turkish Cypriots and do not exercise any governmental authority. The respondent Government maintain that the presumption of overall control on which the Court based its judgments in the cases of Loizidou v.   Turkey and Cyprus v. Turkey is not tenable on the facts of the present case. In their view these cases have not created a res judicata that would preclude a reappraisal of relevant issues in the instant application. Due process and procedural fairness require that the applicant shows beyond reasonable doubt actual or overall control by Turkey over northern Cyprus. However, in their view, the applicant has not been able to do this. In this connection, the respondent Government rely, inter alia , on the Court's judgment 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 and Others v.   Belgium and 16 Other Contracting States ((dec.) [GC], no.   52207/99, ECHR 2001 ‑ XII). Furthermore, the respondent Government aver that the applicant's property claim can only be resolved within the framework of the island's inter-communal talks and on the basis of a bi-zonal settlement. In this context they argue that the Annan Plan and the circumstances relied upon by the UN Secretary-General in its formulation clearly demonstrate the exclusive authority of the “TRNC” respondent Government over the people and territory of northern Cyprus. They state that it is implicit in the Annan Plan that Turkey does not, directly or indirectly, control the policies and conduct of the “TRNC” respondent Government and thus, that the latter is not a subordinate local administration of Turkey in northern Cyprus. The independence of the “TRNC” Government is cogently evidenced at every stage of the evolution of the UN Secretary-General's proposals by the manner in which he involved the Turkish-Cypriot side in the negotiations leading up to his plan as well as from the text of the plan. They refer to certain features of the plan in this respect and to statements made by representatives of various Governments and international organisations. Although the respondent Government admit that the texts of the plan they refer to, do not, by reason of their rejection by the Greek Cypriots, have formal binding force, they emphasise that their content reflects the UN Secretary-General's assessment, widely endorsed by the international community, of the fair balance to be struck in the resolution of the Cyprus conflict as well as the irreversible and accepted factual position on the island, particularly the fact that the Turkish-Cypriot people were treated as an independent entity of equal status with the Greek-Cypriot people. Thus, the respondent Government conclude that the Annan Plan reflects an acknowledgment that Turkey does not have “jurisdiction” in northern Cyprus and consequently, that the pending cases cannot be regarded as falling within the terms of Article 1 of the Convention. They stress that acceptance of the view that northern Cyprus does not fall within the Conventional jurisdiction of Turkey would not lead to international recognition of the “TRNC”, since such recognition could only stem from positive action by states, individually or collectively. Furthermore, in their view, such an approach would not create a vacuum in the system of human rights protection, the possibility of which evidently concerned the Court in Cyprus v.   Turkey (op.   cit.). This is evident from the establishment of an effective remedial framework under “TRNC” law coupled with other developments affirming the responsibility of the “TRNC” for these issues as opposed to Turkey and the recognition and application of the Convention in the territory of northern Cyprus that will be relevant to the operation of the Commission. Alternatively, the respondent Government contend that if the Court were to conclude that northern Cyprus remains subject to the jurisdiction of Turkey and that cases like the instant one are admissible, it will have to address the merits of each case. In such circumstances, they note that the Court should bear in mind that the property settlement proposed in the Annan Plan constituted the considered view of the UN Secretary-General, endorsed by the international community, that the reciprocal arrangements set out therein for the settlement of outstanding property claims would be a fair and reasonable resolution of that aspect of the dispute as part of an overall settlement. (b)     The applicant The applicant disputes the submissions of the respondent Government relying essentially on the reasons given by the Court for rejecting similar objections 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 its report of 4 June 1999 (reported in Cyprus v. Turkey , [GC], no.   25781/94, ECHR 2001 ‑ IV) . She emphasises that there has not been any material change of facts since the adoption of the above judgments and that Turkey continues to exercise effective control over the northern part of Cyprus. Furthermore, she points out that in accordance with the report of the UN Secretary-General, the respondent Government are responsible for the status quo in the fenced-up area of Varosha (Famagusta) where the applicant's home and property are situated. The applicant submits that the Annan Plan as such, whether or not in force, as a matter of general principle can have no effect on the powers and responsibilities of the Court, the application of the Convention or the Rules of Court. The Annan Plan specifically laid out the consequences of rejection and acceptance; in the former case the plan would be null and void and in the latter the new Government would request the Council of Europe and the Court to take certain consequential steps. The plan, not being in force, does not have any legal consequences relating to the issue of admissibility. The applicant argues that it was not in the contemplation of the parties that non-acceptance of the Annan Plan would affect the admissibility of existing applications or the validity of the prior decisions of the Court. The Commission and the Court have always adopted the position that the existence of parallel diplomatic processes seeking a settlement did not have an adverse effect on the admissibility of applications. In particular, the Court in its judgments in the cases of Loizidou v.   Turkey (merits, op. cit., §   64) and Cyprus v. Turkey (op. cit., §   188) ruled that negotiations between the parties in Cyprus were not an admissibility or merits barrier to the lodging of applications alleging violations of the Convention. She alleges that the plan is res inter alios acta for the applicant in a case brought under the Convention. She is entitled to the standards of legal security embodied in the Convention. In her view, no reason exists, legal or moral, why she should be prevented from regaining the use of her property and family home in Famagusta. The applicant maintains that the absence of any legal justification for the exclusion of Greek Cypriots from their property was well recognised in its Loizidou judgment (merits, op. cit., §§ 63-64). The applicant submits that the observations of the respondent Government in this connection are essentially political in character, neglecting the relevant legal framework and the conditional nature of the plan. She contends that the respondent Government attempt to use the provisions of the Annan Plan to justify assertions relating to the alleged previous political status quo . The main purpose of the plan was to establish a “new state of affairs” by negotiation and agreement. However, this was not accomplished and the plan for all intents and purposes was rendered legally null and void following the referendums. Therefore, it would be anomalous for the Court to take any account of, let alone involve itself in, the political background to the Annan Plan. The plan referred to a political future and not to an existing political and legal state of affairs. If the arguments of the respondent Government were correct, the existence of the plan alone would have pre-empted the outcome of the negotiations and the requirement of the referendums. She states that the respondent Government's assertions completely misrepresent the purpose and context of the plan. The facts that the plan refers to Greek ‑ Cypriot and Turkish-Cypriots and that the parties had equal status in the negotiations do not elevate the “TRNC” to statehood. In this context, the applicant also refers to the various statements (made by representatives of various Governments and international organisations) quoted in the respondent Government's observations and argues that they do not provide any support for their assertions. The applicant notes that the Greek-Cypriot opinion was not necessarily opposed to the Annan Plan tout court but its precise modalities. She emphasises that she should not be punished because of the non-acceptance of the Annan Plan by the Greek-Cypriot community. There were many reasons other than the property issue which formed the basis of non-acceptance. Greek Cypriots were primarily concerned about their security given the continued presence of the Turkish armed forces. There was also little faith that the Turkish Government would actually implement the plan and grave concern about its willingness to honour its provisions. Under the plan only one third of some people's properties would be potentially returned whilst it was uncertain whether adequate compensation would be awarded to affected persons. (c)     The Cypriot Government The Cypriot Government argue that there are no legal consequences, whether under the Convention or otherwise, of the failure of the Annan Plan, for the cases pending before the Court or for the fundamental human rights of the individual applicants. The Cypriot Government submit that there is no statement in the Annan Plan to the effect that Turkey was not and is not the correct respondent in the cases pending before the Court. The various statements referred to by the respondent Government in its observations, express regret at the lack of a united Cyprus and that more must be done to end the international isolation of the Turkish-Cypriots. These statements are not manifestly inconsistent with the view that northern Cyprus is an area under the jurisdiction of Turkey for the purposes of the Convention. Both communities were given the opportunity to express their views about the Annan Plan in the referendums. According to the Cypriot Government, the UN Secretary General's actions in treating the two communities as having equal status did not and could not confer statehood upon the “TRNC”; nor was that the aim of the Annan Plan. Nothing in the plan, whether for the purpose of the Convention or otherwise, “acknowledged” that Turkey does not have State responsibility and jurisdiction in northern Cyprus for the purposes of Article 1 of the Convention and the Convention as a whole. The Cypriot Government aver that the Court should adhere to its previously adopted approach of rejecting Turkey's reference to inter-communal talks between the parties, on the basis that such talks failed to provide a justification for the interference with the human rights in the cases of Loizidou v. Turkey and Cyprus v. Turkey (op. cit.). If the respondent Government's arguments were correct there would indeed be a vacuum in the system of human rights protection since there would be no possibility of access to the Court for breaches of Convention rights in northern Cyprus for which Turkey or its agents are responsible (given their control over the “TRNC” in military terms as well as actual authority). Victims of such violations would be confined to such remedies, if any, provided by the “TRNC” with no European supervision by the Court as the ultimate judicial guardian of the Convention system. In their opinion, the Annan Plan represented an attempt to reach a political compromise that would, inter alia, have sought to provide domestic remedies for the claims against Turkey of breaches of the Convention rights of Greek Cypriots. The proposals in the plan were political in nature and were intended to form the basis of a political settlement; they were not and did not purport to be compatible with the Convention principles of law. They were firmly rejected by the Greek-Cypriot electorate as not providing a fair and reasonable solution. The reasons for the rejection of the plan are complex and political. The Cypriot Government point out that the Greek-Cypriot electorate were not voting on simply a single issue but on the entirety of the Annan plan, that is, a considerable range of issues, including for example governance and political rights. They consider that it is unthinkable that Greek-Cypriots, such as the applicant, should lose their recourse to the Court because they voted on a wide-ranging political plan. The rejection of the Annan Plan could not have legitimised and did not legitimise the continued Turkish occupation and the violations of the rights of the applicant. The Cypriot Government point out that they continue to hope for a more balanced political solution to the problems caused by the Turkish invasion and its aftermath. In this context, they note that these matters are irrelevant to the just determination by the Court of the present application as well as in respect of other pending cases against Turkey, that concern the fundamental human rights of individual applicants that remain unaffected by the rejection of the plan. The Court cannot adjudicate on the Annan Plan which is null and void and without legal effect. Nor can it adjudicate on the reasons for its failure. They state that the Convention system is designed to secure the effective protection of individual rights, the Court being the ultimate judicial guardian and that it would destroy the very substance of the Convention system if the Court's role were to become political rather than judicial. The Cypriot Government, in explaining their fundamental objections as well as those of the people to the Annan Plan, note that firstly, the domestic remedies provided in the plan did not cover the full spectrum of the violations complained of in respect of the applicant's property and home and were generally ineffective. No restitutio in integrum was provided and the damages were inadequate (being principally in the form of “property appreciation certificates” payable after twenty five years or longer from a compensation fund to be established under uncertain conditions and with no security of solvency). Secondly, they argue that the Annan Plan provided for the constitutional division of the island of Cyprus on the basis of effective ethnic separation with major restrictions on the freedom of settlement, effective discrimination, confiscation of properties, deprivation of homes, denial of political rights and condemnation of war crimes, for example, the settlement of occupied territories through the transfer of civilian population from Turkey, an occupying state. In this connection, they draw the Court's attention to the draft principles on the refugees' right to return and to restitution of their properties by the UN Sub Commission on the Promotion and Protection of Human Rights. Even though the rejection of the Annan Plan means that it is “null and void” in accordance with Article 1(2) of Annex IX to the Foundation Agreement, the Cypriot Government submit that it is that the respondent Government aims to involve the Court in political questions relating to the plan and its rejection by the Greek-Cypriot electorate in an attempt to persuade the Court, being heavily over-burdened with pending claims, to compel Greek-Cypriot applicants to have recourse to the ineffective and partial remedies contained in the “TRNC Law”. (d)     The Court's assessment The Court recalls that in the case of Loizidou v. Turkey the Court dismissed the respondent Government's preliminary objections as to Turkey's alleged lack of jurisdiction and responsibility for the acts in respect of which complaint was made ( Loizidou v.   Turkey , merits, op. cit., §§ 3