FOURTH SECTION
DECISION
Application no. 4845/09
Apostolos GEORGIOU against Cyprus
and 2 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 28 August 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on the dates set out in the appendix,
Having deliberated, decides as follows:
THE FACTS AND COMPLAINTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
i. Georgiou, no. 4845/09
3. The applicant, a Greek-Cypriot resident in Australia, entered into a contract to buy land in the Republic of Cyprus from a Turkish-Cypriot woman also resident in Australia. When the owner changed her mind about the agreement, the applicant brought proceedings to enforce the sale; the owner brought a counter-claim to have the agreement declared null and void. The applicant was successful at first instance. By decision of 11 September 2008, the Supreme Court in its appellate jurisdiction reversed the lower court, declaring the agreement null and void and referring to the provisions of Law 139/1991 which required the consent of the Custodian to transactions in Turkish-Cypriot properties.
The applicant invoked Article 1 of Protocol No. 1 and Article 14 of the Convention as well as Articles 17 and 18.
ii. Gavriel and others, no. 10282/09
4. Three applicants, Greek-Cypriots, entered into an agreement to buy land in the Republic of Cyprus from a person who had inherited it from his father, a Turkish-Cypriot. By letter of 6 August 2008, the Custodian refused permission for the sale classifying the property as falling under Law 139/91.
The applicants invoked Article 1 of Protocol No. 1.
iii Diogenis Property Investments (Khima) Ltd and others, no. 28993/09
5. The second and third applicants, administrators of property of a deceased Turkish-Cypriot, agreed to sell four plots of land to the first applicant, company registered in Cyprus: the Land Registry refused to accept the transfer on 21 September 2007. No court proceedings were taken as the applicants explained that such sales were declared illegal by the Supreme Court applying Law 139/1991.
The applicants invoked Article 1 of Protocol No. 1 and Article 14.
B. Relevant domestic law and practice
1. Legislation concerning disposal of Turkish-Cypriot property
6. The relevant laws, including Law 139/191 as amended in 2010, are set out in Kazali and Others v. Cyprus (no. 49247 et al, §§ 34-100, decision of 6 March 2012).
2. Case-law on the validity of contracts of sale of land under Custodianship
7. In its judgment of 11 September 2008 in civil appeal no. 303/2006 (Perihan Mustafa Korkut or Eyiam v. Apostolou Georgiou through his appointee by power of attorney Charalambou Zoppou), the Supreme Court of the Republic of Cyprus held that, following the enactment of Law 139/91, immovable property belonging to Turkish-Cypriots who, from July 1991, did not reside in the Government-controlled areas, came under the possession and administration of the Custodian and no legal act/transaction could be lawfully concluded/entered into in relation to the property without going through the Custodian or without his permission. This being so, all court proceedings concerning such property had to be brought against the Custodian and not against the Turkish-Cypriot owner (Section 6 (b) of the Law 139/1991). The court found therefore that the contract of sale and transfer entered into by the claimants concerning the property under custodianship was in breach of the provisions of Law 139/91 and was therefore illegal. The court also found that the contract was contrary to public policy as the contract interfered with the arrangements made by the State following the Turkish invasion in order to protect Turkish-Cypriot property and deal with the needs of thousands of refugees. The court accordingly set aside the first-instance decision enforcing the sale contract and dismissed the action. It issued an order annulling the contract and the order of transfer that had been issued for the purposes of specific performance.
THE LAW
8. The first applicant in application no. 28993/09 and the applicants in the other two applications complained that they had been unable to purchase property governed by the custodianship regime, invoking Article 1 of Protocol No. 1. This provision provides in its first sentence:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”
9. The Court notes that the applicants do not complain about any interference by the authorities with any property to which they hold title. Their complaint is that they have not been able to gain title as the sale agreements which they entered had to be, or were not approved, by the Custodian as required by Law 39/1991. The Court’s case-law holds that there is no right to acquire property guaranteed under Article 1 of Protocol No. 1 (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48, Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II, and Kopecký v. Slovakia [GC], no. 44912/98, § 35(b), ECHR 2004‑IX). Nor can there be any legitimate expectation of obtaining ownership capable of constituting a possession for the purposes of Article 1 of Protocol No. 1 where the applicants’ claim on a domestic level failed because they had not met one of the essential statutory conditions (see Kopecký, cited above, §§ 45-52).
10. In the present case, it is not disputed that the consent of the Custodian was a precondition for the transfer of title of Turkish-Cypriot property falling under Law 139/1991. The Supreme Court has declared null and void a sale agreement that purported to effect such transfer, and stated that no transfers are legally possible without going through the Custodian. Nor is there any basis in the circumstances of these cases for finding that the applicants had any legitimate expectation that such a transfer would be executed. No “possessions” have therefore been shown to exist falling within the scope of Article 1 of Protocol No. 1 and the applicants’ complaints must be rejected as incompatible ratione materiae with this provision pursuant to Article 35 §§ 3 and 4 of the Convention.
11. The second and third applicants in no. 28993/09 complained that as administrators of the estate of a Turkish-Cypriot they had been unable to sell the property due to the operation of Law 139/1991. They invoked Article 1 of Protocol No.1 (set out above), as well as Article 14 (prohibition of discrimination in the enjoyment of Convention rights).
12. Insofar as the applicants as the persons vested with legal power to dispose of the property of the deceased complained that they were prevented from exercising the right to sell, the Court would recall that it would have been open to them to request the permission of the Custodian for the sale to be carried out. If the Custodian had refused, a claim could be made to the District Court, and on appeal to the Supreme Court, arguing that the refusal infringed their Convention rights (see, mutatis mutandis, Kazali and Others, cited above, §§ 137-153).
13. The Court has held in the aforementioned Kazali and Others case (cited above, § 153) that it cannot exclude that Law 139/1991 as amended provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Turkish-Cypriots. The applicant property owners in the present case 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.
14. Insofar as the applicants invoked other provisions of the Convention, the Court finds that these disclose no appearance of a violation of the Convention and must be rejected as manifestly ill-founded as a whole pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
APPENDIX
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
4845/09
18/12/2008
Apostolos GEORGIOU
17/04/1945
Melbourne
Cypriot
Christos M. TRIANTAFYLLIDES
10282/09
05/02/2009
Pavlakis GAVRIEL
24/02/1967
Aradippou
Cypriot
Maria KAFATARI
16/12/1970
Aradippou
Cypriot
Ioannis AGATHANGELOU
22/07/1956
Aradippou
Cypriot
Maria AGATHANGELOU
28993/09
15/05/2009
DIOGENIS PROPERTY INVESTMENTS (KTIMA) LTD.
DIOGENIS PROPERTY INVESTMENTS (KTIMA) LTD.
Paphos
Cypriot
Christos GEORGIADIS
27/01/1934
Paphos
Cypriot
Ulusay ALI FELLAH
04/10/1942
Morphou
Cypriot
Epaminondas KORAKIDIS
Full & Egal Universal Law Academy