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Cite as: [2010] ECHR 1001
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications
nos. 45663/99, 46155/99, 46222/99, 46756/99, 47377/99,
47888/99,
50648/99, 51272/99, 54432/00, 54442/00, 54779/00, 55250/00, 56324/00,
57457/00, 57782/00, 60808/00, 60811/00, 60829/00, 63532/00, 63535/00,
65259/01, 65261/01, 65262/01, 65658/01, 65725/01, 65737/01,
3905/02,
3907/02, 37996/02
by
Myron-Michael NICOLATOS and Others
against Turkey
The
European Court of Human Rights (Fourth Section), sitting on
1
June 2010 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Işıl
Karakaş,
judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
regard to the above applications lodged with the European Commission
of Human Rights on 26 October 1998 (45663/99), 14 January 1999
(46155/99), 17 February 1999 (46222/99), 10 February 1999 (46756/99),
12 April 1999 (47377/99), 4 May 1999 (47888/99), 9 August 1999
(50648/99), 3 September 1999 (51272/99), 21 January 2000 (54432/00),
21 January 2000 (54442/00), 27 January 2000 (54779/00),
21
January 2000 (55250/00), 20 March 2000 (56324/00), 21 April 2000
(57457/00), 5 April 2000 (57782/00), 20 July 2000 (60808/00), 9
August 2000 (60811/00), 31 July 2000 (60829/00), 23 November 2000
(63532/00), 23 November 2000 (63535/00), 22 December 2000
(65259/01),
22 December 2000 (65261/01), 22 December 2000
(65262/01), 25 January 2001 (65658/01), 26 January 2001
(65725/01), 26 January 2001 (65737/01), 24 January 2002 (3905/02), 24
January 2002 (3907/02), 14 October 2002 (37996/02),
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, and in some cases, by the intervening Government, the Republic of Cyprus,
Having deliberated, decides as follows:
THE FACTS
The details of the applicants are contained in the annex.
The Turkish Government (“the Government”) and, in some cases the intervening Government of the Republic of Cyprus, were represented by their respective Agents.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants claimed that since the 1974 Turkish intervention in northern Cyprus they had been deprived of their property rights, as their property was located in the area that was under the occupation and control of the Turkish military authorities. Since that date, they had been prevented from having access to and using their properties and, in some cases, their homes.
COMPLAINTS
The applicants in all cases complained under Article 1 of Protocol No. 1 that they had been denied access to, and enjoyment of their properties in northern Cyprus.
The applicants in all cases (save nos. 46222/99, 50648/99 and 51272/99) complained under Article 14 that the above matters disclosed discrimination.
The applicant in no. 45663/99 also invoked Article 3 on account of racial discrimination disclosed by the matters above.
The applicant in no. 37996/02 also invoked Article 2 of Protocol No. 4.
The applicants in nos. 46222/99, 47888/99, 50648/99, 58678/00, 60808/00, 60811/00 and 37996/02 complained under Article 8 that they had been deprived of their homes of which they were the owners, or part owners. In no. 51272/00, the applicant complained of lack of access to the family home which was owned by his wife, the applicant in no. 50648/99.
THE LAW
A. Concerning application no. 51272/99
The Court notes that the applicant in no. 51272/99, who had raised complaints principally concerning property which he owned in northern Cyprus and lack of access to the family home which was owned by his wife, died shortly after having introduced his complaints. His widow, the applicant in no. 50648/99, was administrator of his estate and one of the legal heirs, who had applied to continue the application in the name of the applicant. Having regard to the particular circumstances of these cases, the Court would note that insofar as the applicant's property is now owned by the legal heirs any claims in respect of that property can be continued by those individuals. Insofar as the applicant complained about his inability to return to the family home, which complaint is related to his past ties to that property, the Court considers that this concerns a matter of an eminently personal, non-transferable nature (see, for example, Vääri v. Estonia (dec.), no. 8702/04, 8 July 2008). Consequently, considering that there exists no general interest which necessitates proceeding with the examination of the complaint, the Court finds that the conditions in which a complaint may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied.
B. Concerning property issues (Article 1 of Protocol No. 1)
Insofar as the applicants in these applications complained of
interference with their property rights guaranteed under Article 1 of
Protocol No. 1, the Court recalls that applicants are required by
Article 35 § 1 of the Convention to exhaust available, effective
domestic remedies. It also recalls that in Demopoulos and Others
v. Turkey (dec.) [GC], nos. 46113/99 et al., 1 March 2010, the
Grand Chamber examined the issue of whether
Greek-Cypriot
applicant property-owners had available to them a remedy in respect
of their complaints concerning property in the northern part of
Cyprus. It found that for the purposes of Article 35 § 1 of the
Convention, the procedure before the Immovable Property Commission
(“IPC”), and further appeal to the “TRNC”
High Administrative Court, provided for in Law 67/2005 were to be
regarded as “domestic remedies” of the respondent State
and that no ground of exemption from the application of Article 35 §
1 of the Convention has been established in that respect. As to the
efficacy of the framework of redress provided, it held:
“127. The Court finds that Law 67/2005
provides an accessible and effective framework of redress in respect
of complaints about interference with the property owned by Greek
Cypriots. The applicant property owners in the present cases
have
not made use of this mechanism and their complaints under Article 1
of
Protocol No. 1 to the Convention must therefore be rejected
for non-exhaustion of domestic remedies. It is satisfied that Law
67/2005 makes realistic provision for redress in the current
situation of occupation that is beyond this Court's competence to
resolve.
128. Lastly, it would stress that this decision is not be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution. If, however at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above. The Court's ultimate supervisory jurisdiction remains in respect of any complaints lodged by applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress.”
The Court notes that the applicant property owners in the present cases, or as appropriate their legal heirs, have not made use of this mechanism. Their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Concerning Article 8 (right to respect for home)
Insofar as applicant property owners also complained that they had been prevented from returning to their homes, the Court notes that claimants who own property may make claims to the IPC in respect of non-pecuniary damages, which provision in Law 67/2005 is broad enough to encompass aspects of any loss of enjoyment of home (see Demopoulos and Others, cited above, §§ 37 and 133). It accordingly finds that these applicants' complaints under Article 8 also fail for non-exhaustion of domestic remedies as they have not brought such claims before the IPC.
This
part of the application must therefore be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
D. Remaining complaints (Articles 3 and 14 of the Convention, Article 2 of Protocol No. 4)
The Court notes that Turkey has not ratified Protocol No. 4; thus it has no competence ratione personae to examine any complaint under its provisions and must reject such pursuant to Article 35 §§ 3 and 4 of the Convention. Further, having regard to the facts of the cases, the submissions of the parties and its findings under Article 1 of Protocol No. 1 and Article 8 of the Convention, the Court considers that no further issue arises for examination concerning the remaining complaints made by the applicants.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to strike the complaint concerning lack of access to home in application no. 51272/99 out of its list;
Declares the remainder of the applications inadmissible.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
ANNEX
45663/99, Myron-Michael Nicolatos, Cypriot national who was born in 1952 and lives in Larnaca. Represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
46155/99, Electrofabric Co Ltd, is a company with liability limited by shares registered in Cyprus under Registration Number 1524. Represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
46222/99, Mrs Polyxeni Paraskeva, Cypriot national, born in 1944 and living in Limassol (Cyprus). Represented by Mr M. Parskevas, lawyer practising in Nicosia.
46756/99, Lordos Tourist Ltd, is a private company with liability limited by shares registered in Cyprus on 2 February 1965 under Registration Number 1965. Represented by Mr A. Demetriades, a lawyer practising in Nicosia.
47377/99, Latomeia Elba Ltd, company liability limited by shares, registered in Cyprus on 18 January 1971 under no. 3422. Represented by Mr A. Demetriades, a lawyer practising in Nicosia.
47888/99, Mr Vassos Proestos, Cypriot citizen born in 1933 and resident in Nicosia. Represented by Mr A. Demetriades, a lawyer practising in Nicosia.
50648/99, Mrs Maroulla Yiallourou, Cypriot citizen born in 1934, living in Nicosia (administrator of estate and heir to husband in no. 51272/99). Represented by Mr G. Colocassides, a lawyer practising in Nicosia.
51272/99, Mr Eleftherios Yiallourou, Cypriot citizen born in 1921, deceased 5.9.2000. Represented by Mr G. Colocassides, a lawyer practising in Nicosia.
54432/00, Mr Androniki Veoukas, US citizen born in 1927, living in Florida USA. Represented by Mr A. Demetriades, lawyer practising in Nicosia.
54442/00, Mr George Hajiyianni, Australian citizen born in 1931, living in Melbourne, Australia. Represented by Messrs A. Demetriades and N. Angelides.
54779/00, Mr George Odysseos, Cypriot citizen born in 1947, living in Limassol. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
55250/00, Mrs Andriane Katsifli British citizen born in 1930, living in Surbiton, UK. Represented by Messrs A. Demetriades and N. Angelides, lawyers practising in Nicosia.
56324/00, Ghalanos Brothers Ltd, company registered in Cyprus in 1953 under no. 555. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
57457/00, Lordos Apartotels Limited, company registered in Cyprus on 18 January 1972 under no. 4057. Represented by Mr A. Demetriades, a lawyer practising in Nicosia.
57782/00, Joannou & Paraskevides Limited, company registered in Cyprus on 14 November 1946 under no. 274. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
60808/00, Mrs Maria Angelides, Cypriot citizen born in 1945, living in Strovolos. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
60811/00, Mr Andriani Arakelian, Cypriot citizen born in 1947 living in Larnaca, Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
60829/00, Mr Daniel W. Rossides, Mr Takey Christ and Mr Eugene T. Rossides, US citizens, born in 1925, 1937 and 1927, living in Brunswick (Maine, U.S.A.) Jacksonville (North Carolina, USA) and Washington DC, respectively. Represented by Messrs Karambelas & Akaras, lawyers practising in Washington D.C and Mr A. Demetriades, lawyer practising in Nicosia.
63532/00, Akinita I. TH. Ioannou & Sons Ltd, company registered in Cyprus in 1963 under no. 1181. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
63535/00, Stelios-Despo Ioannou Properties Ltd, company registered in Cyprus in 1970 under no. 3084. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
65259/01, Nea Salamis Estates Ltd, company registered in Cyprus in
1969 under no. 2576. Represented by Mr A. Demetriades and
Ms E.
Nathanael, lawyers practising in Nicosia.
65261/01, Warm Shallow Beach Estate, partnership registered in Cyprus
in 1952 under no; 1248. Represented by Mr A. Demetriades and
Ms
E. Nathanael, lawyers practising in Nicosia.
65262/01, Sea Shore Development Company Ltd v. Turkey, company
registered in Cyprus in 1947 under no. 262. Represented by
Mr A.
Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
65658/01, Regaena Agricultural Company Ltd, company registered in Cyprus in 1959, under no. 868. Represented by Mr A. Demetriades and Ms E. Nathanael, lawyers practising in Nicosia.
65725/01, A.P. Economides Hotels Ltd, company registered in Cyprus in
1972, under no. 4795. Represented by Messrs A. Demetriades and
M.
Rafael.
65737/01, Farma Kalemporos, partnership registered in Cyprus in 1965 under no. 3048. Represented by Messrs A. Demetriades and M. Rafael, lawyers practising in Nicosia.
3905/02, Cerenia Developments Ltd, company registered in Cyprus in 1972 under no. 4571. Represented by Mr A. Demetriades, lawyer practising in Nicosia.
3907/02, Soltour Ltd, company registered in Cyprus in 1969 under no. 2718. Represented by Mr A. Demetriades, lawyer practising in Nicosia.
37996/02, Andreas Nicolaou, Cypriot citizen, born in 1941, resident in Nicosia. Represented by Mr M. Kyprianou, lawyer practising in Nicosia.