AS TO THE ADMISSIBILITY OF
Application No. 12822/87
by Andrew G. KAPAS
against the United Kingdom
The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 February 1987
by Andrew George Kapas against the United Kingdom and registered
on 24 March 1987 under file N° 12822/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, submitted by the applicant, may be
summarised as follows:
The applicant, Mr. A. G. Kapas, is a British citizen who was
born in Cyprus in 1920. He resides in the United Kingdom.
In 1971 he left the United Kingdom with his family and took up
residence in Cyprus. There he owned a considerable amount of real
and personal property including a luxury house and substantial farming
land and equipment.
In 1974 Turkey invaded Cyprus and occupied about 40% of the
island including the applicant's land. The Turkish authorities allegedly
expropriated all of the applicant's real and personal property. In
1974 the applicant made a claim to the British High Commission in
Nicosia which transmitted it to the Turkish Cypriot Claims
Commission. The Claims Commission has declined to process his claim
because the applicant has Greek or Greek Cypriot connections.
The applicant sought legal aid to bring an action against the
United Kingdom but was refused it. Nevertheless on 28 June 1985 he
commenced an action in the Queen's Bench Division of the High Court of
Justice of England, seeking a declaration that the British Government
honour its obligations under the Treaty of Guarantee entered into in
1960 by the Republic of Cyprus on the one part and Greece, the United
Kingdom and Turkey on the other part. He claimed that the United
Kingdom in order to fulfil its obligations under the Treaty should
take legal action against Turkey for the return of his property and
for fair compensation for his lost property, his loss of earnings and
for hardship endured as a result of those losses, and in the
alternative that the United Kingdom should compensate him for such
losses.
The Treaty of Guarantee of 16 August 1960 provides that in
return for the Republic of Cyprus undertaking not to participate in
any political or economic union with any other State and not to agree
to any partition of the island, the United Kingdom, Greece and Turkey
undertook to recognise and guarantee the independence, territorial
integrity and security of the Republic of Cyprus and, in the case of
breach of any provisions of the Treaty "to consult together with a
view to making representations, or taking the necessary steps to
ensure observance of those provisions". The United Kingdom then made a
declaration that, having examined the documents concerning the
establishment of the Republic of Cyprus, including the Treaty of
Guarantee, it accepted those documents as the agreed formulation for
the final settlement of the "problem of Cyprus". It further declared
that it was prepared to transfer sovereignty over the island to the
Republic of Cyprus subject to certain conditions including that
"provision shall be made, by agreement, for the protection of the
fundamental human rights of the various communities in Cyprus". The
Constitution of Cyprus, in Part II, contains a Bill of Rights which
includes in its Art. 23 a right to own property. A regime of
enforcement of this and other constitutional rights is also provided.
On 16 December 1985 the Attorney-General obtained an order
from a Master of the High Court to have the applicant's statement of
claim struck out as not disclosing any cause of action. The Master
held that the courts "could not control the use of prerogative in
relation to treaty-making powers and the consequences of treaties".
The applicant appealed against that order to the Queen's Bench
Division of the High Court of Justice.
His appeal is still pending.
He again applied for legal aid to the Law Society. The
General Committee of the Law Society refused legal aid on the ground
that there was no cause of action in the proceedings he intended to
take. The applicant appealed to the Area Committee of the Law Society
which, on 21 April 1986, upheld the General Committee's decision.
COMPLAINTS
The applicant makes the following complaints:
1. that the United Kingdom Government, as obliged by the
Treaty of Guarantee 1960, failed to protect his human rights
and, in particular, his property rights contrary to
Article 1 of Protocol No. 1;
2. that the denial of legal aid deprived him of a fair hearing of
his civil claim, contrary to Article 6 para. 1 of the Convention;
3. that the Master of the Court who struck out his claim was
biased so that he was denied a fair hearing of his civil
claim contrary to Article 6 para. 1 of the Convention;
4. that, because the Master of the Court struck out his
statement of claim, he was denied an effective remedy
contrary to Article 13 of the Convention.
THE LAW
1. The applicant has complained under Article No. 1 of Protocol
No. 1 (P1-1) that the United Kingdom has failed to perform its international
obligations under the Treaty of Guarantee of 1960 and the associated
declaration to protect the fundamental rights of the various
communities in Cyprus and, in particular, his property rights.
Article 1 of Protocol No. 1 (P1-1) states that
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. ..."
The Commission notes that there has been no direct
interference with the applicant's possessions by the United Kingdom
authorities. The alleged expropriation of his property in Cyprus is
attributed to Turkey and therefore in itself is not a matter for which
the United Kingdom Government is responsible under the Convention. The
applicant maintains however that the United Kingdom is obliged to take
measures against Turkey to protect his property rights.
The Commission recalls that it has previously held that "no
right to diplomatic protection or other measures by a High Contracting
Party on behalf of persons within its jurisdiction is as such
guaranteed by the Convention" (Bertrand Russell Peace Foundation
Limited v. United Kingdom No. 7597/76, Dec. 2.5.78, D.R. 14 p. 117 at
123, 124). The Commission also held that there was no such right
which could be inferred from Article 1 (Art. 1) of the Convention (ibid.).
In the present case the Commission notes that there is no
indication that the Treaty of Guarantee 1960 and the Declaration of
the United Kingdom relied on by the applicant extend the jurisdiction
of the United Kingdom for purposes of Article 1 (Art. 1) of the Convention or
create an individual right vis-à-vis the United Kingdom which can be
enforced in proceedings before the Commission. Furthermore, the
Commission recalls, even assuming that he has exhausted domestic
remedies, that there is no right in the Convention which requires a
High Contracting Party to espouse the applicant's complaint under
international law or intervene with the Turkish authorities on his
behalf. This complaint must therefore be rejected as incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that the denial of legal
aid deprived him of a fair hearing of his civil claim contrary to
Article 6 para. 1 (Art. 6-1) of the Convention which provides inter alia
as follows:
"In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
The Commission does not find it necessary to determine
whether the applicant's claim in the United Kingdom proceedings may be
described as a "civil right". Even assuming that the proceedings
concern such a right, the Commission finds that the complaint under
Article 6 (Art. 6) is inadmissible for the following reasons.
The Commission recalls that the European Court of Human Rights
held in the Airey Case that Article 6 para. 1 (Art. 6-1) of the Convention does
not require a High Contracting Party to provide free legal aid for
every dispute relating to a civil right (Eur. Court H.R., Airey
Judgment of 9 October 1979, Series A no. 32 para. 26). This point has
been further elaborated by the Commission in X v. United Kingdom (No.
8158/78, Dec. 10.8.80, D.R. 21 p. 95 at 101) in the following terms:
"Article 6 (1) (Art. 6-1) does not require that legal aid be
provided in every case, irrespective of the nature of the
claim and supporting evidence. Where an individual is
refused legal aid in a particular case because his proposed
civil claim is not sufficiently well grounded or is regarded
as frivolous or vexatious the burden would then fall on him
to secure his access to court in some other way such as,
for example, bringing the action himself or seeking
assistance from some other source. Accordingly the
Commission is of the opinion that where a prisoner has been
refused legal aid on the basis that his claim lacks
reasonable prospects of success such a situation would not
normally constitute a denial of access to court unless it
could be shown that the decision of the administrative
authority was arbitrary."
In the present case the legal aid authority has rejected the
application for legal aid on the basis that his case did not disclose
a cause of action. There is no indication from the case file that
this decision is, in any sense, arbitrary. Moreover, the Commission
observes that the absence of legal aid in the applicant's case has not
prevented him from opposing the application to the Master of the High
Court to strike out his statement of claim or from lodging an appeal
against his decision.
It follows that the above complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant has further complained that the Master of
the Queen's Bench Division who struck out his claim was biased against
him, in breach of his right to a fair hearing guaranteed by Article 6
para. 1 (Art. 6-1) of the Convention. However, the applicant has lodged an
appeal against the Master's decision which is apparently still pending
before the High Court. It follows that the applicant has not complied
with the condition as to the exhaustion of domestic remedies and this
part of the application must therefore be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
4. Finally the applicant complains that, because his statement of
claim was struck out by the Master, he was denied an effective remedy
contrary to Article 13 (Art. 13) of the Convention.
However the Commission finds that no separate issue arises
under this provision since it has already examined the applicant's
complaints under Article 6 para. 1 (Art. 6-1) of the Commission whose more
rigorous procedural guarantees take precedence over the more general
and less strict requirements of Article 13 (Art. 13) (see No. 9276/81, Dec.
17.11.83, D.R. 35 p. 13 at p. 21).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)