European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55254/00
by Demetra CACOYANNI 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 application lodged on 15 February 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first, second and third applicants, Mrs Demetra Cacoyanni (née Theodoulou), Mrs Stella Soulioti (née Cacoyanni) and Mr Demetris Souliotis are Cypriot nationals of Greek Cypriot origin born in 1950, 1920 and 1915 respectively. The third applicant died on 26 September 2002; the second applicant is the administrator of his estate. The fourth applicant, Mrs Yannoulla Wakefield (née Cacoyanni), is a British national of
Greek Cypriot origin born in 1923. They were represented before the Court by P.L. Cacoyannis & Co, a firm of lawyers practising in Limassol.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The four applicants were members of the same family and all claimed to own property in the northern part of Cyprus.

The first applicant owned a house in Ayios Pavlos in Nicosia, which was also her home.

The second and third applicants were spouses. They owned a plot of land in equal shares suitable for development adjacent to a hotel, in Saranta Askelia in Nicosia. They lived in a house in Nicosia that was owned by the second applicant. The latter owned a plot of land adjoining the garden of this house.

The fourth applicant owned a plot of land in Kyrenia.

In August 1974 the applicants were forced to leave their homes and property following the armed intervention by Turkey in northern Cyprus. The first, second and third applicant therefter resided in Limassol whereas the fourth applicant resided in Paris.

COMPLAINTS

The first, second and third applicants complained under Articles 8 and 14 of the Convention and 1 of Protocol No. 1. They stated that since 1974 Turkey has prevented them from having access to their family home and from exercising their right to the peaceful enjoyment of their property. They affirmed that this was due to the fact that they are of Greek Cypriot origin.

The fourth applicant complained under Article 14 of the Convention and 1 of Protocol No. 1 on the same grounds as above.

THE LAW

A.  Concerning the third applicant

The Court notes that the third applicant died after having introduced his complaints. His widow, the second applicant, is the administrator of his estate on behalf of his legal heirs. Having regard to the particular circumstances of the case, the Court would note that insofar as the
third applicant's property has now passed to the legal heirs any claims in respect of that property can be continued by those individuals or those acting on their behalf. Insofar as the third applicant had complained about his inability to return to his 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 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] (no. 46113/99 et al, decision of 1 March 2010, ECHR 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 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 the first and second applicants also complained that they had been prevented from returning to their homes, which they owned, 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, 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 complaint (Article 14 of the Convention)

Having regard to the facts of the case, 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 complaint made by the applicants.

It follows that this part of the application is manifestly ill-founded.

For these reasons, the Court unanimously

Decides to strike the complaint concerning lack of access to home by the third applicant out of its list;

Declares the remainder of the application inadmissible.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President