AS TO THE ADMISSIBILITY OF
Application No. 29515/95
by Xenis LARKOS
against Cyprus
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 November 1995
by Xenis LARKOS against Cyprus and registered on 12 December 1995 under
file No. 29515/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
12 November 1996 and the observations in reply submitted by the
applicant on 7 February 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Cypriot citizen and a civil servant, born in
1936 and residing in Nicosia, Cyprus. In the proceedings before the
Commission he is represented by Mr. A. Demetriades, a lawyer practising
in Nicosia.
The facts of the case, as they have been submitted by the
parties, can be summarized as follows.
On 1 May 1967 the applicant rented from the Government of Cyprus
a house in which he has been living ever since with his family.
On 3 December 1986 the Ministry of Finance informed the applicant
that the permission by virtue of which the applicant occupied the
premises was revoked. It requested the applicant to surrender the
property by 30 April 1987. On 3 June 1987 the Attorney General warned
the applicant that, if he did not evacuate the premises before
31 July 1987, he would take legal action against him.
On 3 July 1987 the applicant replied that he had been living
together with his large family in the house in question for twenty
years. He had been obliged to spend significant sums of money for the
maintenance and improvement of the premises, because the competent
public authorities had shown no interest. Since he was a "statutory
tenant", he intended to continue to occupy the premises as long as he
was protected by law.
On 9 March 1989, replying to a second letter by the Attorney
General dated 5 January 1989, the applicant reiterated his earlier
position.
On 3 February 1990 the Government of Cyprus instituted
proceedings against the applicant before the District Court of Nicosia.
The Government submitted, inter alia, that the applicant did not occupy
the flat by virtue of a tenancy agreement, but that the flat had been
allocated to him by administrative order because of his position in the
civil service.
On 5 February 1992 the District Court of Nicosia gave judgment
against the applicant. The court did not pronounce on the issue of the
title by virtue of which the applicant occupied the flat. The court
interpreted the Rent Control Law (Law 23/1983) and concluded that it
only bound private owners of property and not the Government of Cyprus.
As a result, a person who rented premises owned by the Government was
not a "statutory tenant" protected by that law. The applicant was
ordered to vacate the premises before 30 June 1992.
The applicant appealed against the judgment to the Supreme Court
relying on Article 14 of the Convention and Article 1 of Protocol
No. 1. At the hearing before the Supreme Court the applicant relied,
in principle, on the following argument: his rights as a tenant were
"property rights" within the meaning of Article 1 of Protocol No. 1 and
he was being subjected to discrimination in the enjoyment of these
rights, because Law 23/83, as interpreted by the District Court of
Nicosia, gave no protection to the Government's tenants, while the same
law protected the Government as a "statutory tenant" when the
Government rented premises owned by a private individual. However, the
applicant also submitted that he enjoyed less protection than tenants
of private persons.
On 22 May 1995 the Supreme Court dismissed the applicant's
appeal, considering that the applicant could not claim any property
rights under Article 1 of Protocol No. 1 as a tenant. The Court also
found that, in any event, the notion of equality did not require that
a person who enjoyed the protection of Law 23/83 as a tenant should be
automatically required to grant the same protection to his or her
tenants if that person happened to own property. Finally, the Court
considered, in an obiter dictum, that even if the case concerned the
different treatment reserved by the law to property rented out by
private owners and to property rented out by the Government, there
would be no violation of the Constitution or the Convention because "it
would be reasonable to consider that it is not necessary to grant
protection (to tenants) vis-à-vis the Government which is not in the
same position as the private owners and it is not expected to
administer the property of State with criteria similar to those guiding
the private owners". Further to this decision, the applicant was
expelled from the flat.
COMPLAINTS
1. The applicant complains that there has been a violation of
Article 14 of the Convention in conjunction with Article 1 of
Protocol No. 1 for the reasons invoked before the Supreme Court.
2. The applicant also complains of a violation of Article 14 of the
Convention in conjunction with Article 8 of the Convention, in that he
will be expelled from his home following a decision of the Supreme
Court which interpreted Law 23/83 in a discriminatory manner.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 November 1995 and registered
on 12 December 1995.
On 10 September 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
12 November 1996. The applicant replied on 7 February 1997, after an
extension of the time-limit fixed for this purpose.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention and Article 1 of Protocol No. 1 taken in conjunction with
Article 14 (P1-1+14) of the Convention that, because he is a tenant of
the Government, he does not enjoy the protection which Law 23/83 gives
to persons placed in analogous situations, i.e. the Government or other
individuals when renting property from private owners.
The Commission recalls that the provisions invoked by the
applicant provide as follows:
Article 8 (Art. 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 (Art. 14) of the Convention
"The enjoyment of the rights and freedoms set forth in this
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 (P1-1)
"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 Government argue that the applicant failed to raise before
the Supreme Court a ground of discrimination that could substantiate
his case under Article 14 (Art. 14) of the Convention. Although the
applicant raised in substance the complaint that he was subjected to
discrimination in the enjoyment of his right to respect for his home,
he did not complain that, as a Government tenant, he enjoyed less
protection than tenants of private persons. At the hearing before the
Supreme Court, the applicant confined his arguments to the following
position: his rights as a tenant were "property" rights within the
meaning of Article 1 of Protocol No. 1 (P1-1) and he was being
subjected to discrimination in the enjoyment of these rights, because
Law 23/83, as interpreted by the District Court of Nicosia, gave no
protection to the Government's tenants, while the same law protected
the Government as a "statutory tenant" when the Government rented
premises owned by a private individual. In any event, the Government
argue that, even assuming that the applicant has exhausted domestic
remedies, his complaints are manifestly ill-founded. A tenancy
agreement does not give rise to rights under Article 1 of Protocol No.
1 (P1-1). Moreover, all the tenants of the Government are treated
equally and as the Supreme Court pointed out, it is not necessary to
extend to the tenants of the Government the protection enjoyed by the
tenants of private owners, because the Government is not expected to
administer the property of the State with criteria similar to those
guiding private owners.
The applicant submits that at the hearing before the Supreme
Court he complained that he did not enjoy the rights he would have
enjoyed had his landlord been somebody else. As a result, he has raised
his complaints in substance. The Supreme Court did not advance any
reasons why he should enjoy less protection than tenants of private
owners. In any event, he is the only Government tenant facing eviction.
The Commission recalls that, according to its case-law, to
exhaust domestic remedies the person concerned must have raised before
the national authorities, at least in substance, the complaint he puts
before the Commission (No. 16810/90, Dec. 9.9.82, D.R. 73, p. 136).
The Commission notes that before the Supreme Court the applicant
complained of discrimination in the protection he enjoyed as a person
renting property which he used as his home. To substantiate his
complaint, he compared his situation, not only to that of the
Government when renting property from private owners but also to that
of other individuals renting property from private owners which they
used as their homes. As a result, the Commission considers that the
applicant has exhausted domestic remedies in accordance with Article 26
(Art. 26) of the Convention.
Moreover, the Commission, in the light of the parties' other
observations, considers that the application raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. The application cannot,
therefore, be regarded as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no
other ground for declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy