FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 3882/02, 3883/02, 3887/02, 3884/02, 3896/02
by Marios ELEFTHERIADES and Others
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 5 October 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 Registrar,
Having regard to the above applications lodged on 17 January 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Government of the Republic of Cyprus,
Having deliberated, decides as follows:
THE FACTS
The first and second applicants are married and the third and fourth applicants are their children. They are of Greek-Cypriot origin and have Cypriot and British nationality. They were born in 1937, 1941, 1965 and 1966 respectively and live in London. The fifth applicant, Eleftheriades Development Co Ltd, is a company incorporated in Cyprus on 1 July 1972, under registration no. 4517. The applicants are represented before the Court by Scordis, Papapetrou & Co and Adamos K. Adamides & Co, lawyers practising in Nicosia.
The facts of the case as submitted by the applicants, may be summarised as follows.
The first four applicants were all born and brought up in Famagusta, in northern Cyprus. Until 1974 they all lived together in their home in the town of Famagusta. The first applicant had established his own architectural office in Famagusta, in which he employed another eight persons. The applicants are the owners or part owners of properties in northern Cyprus, including the family home (owned by the second applicant alone), various building plots, an office, houses, an orange grove and two shops.
The fifth applicant is a family company, co-owned by the first and second applicants. The first applicant is also the director and secretary of the company. The registered office of the company was situated in the building owned by the second applicant. The company's main activities were in land investment and development. It claimed to own property which it had started developing, in the areas of Famagusta and Kyrenia. In particular, it is the registered owner of a building site in Famagusta and claims to be entitled to be registered as the owner of a plot of land in Famagusta as well as the owner of a half share in four plots of land in Dherynia. It maintains that it owns one third of the shares in another limited liabilty company, namely, Melenes Development Ltd, incorporated in Cyprus on 14 December 1972, under registration no. 4927. The first and second applicants are two of the six directors of that company and the first applicant is also the secretary. This company is the owner of four plots of land in the district of Kyrenia which were to be divided into 90 building sites.
The applicants stated that in August 1974 they had to abandon their home, property and possessions.Since August 1974, the applicants have not had access to and/or use of their property and home.
COMPLAINTS
The applicants complained of a violation of Article 1 of Protocol No. 1. They stated that since 1974, the Turkish armed forces have prevented them from having access to their home and from exercising their right to the peaceful enjoyment of their property and possessions.
The first to fourth applicants also complained under Article 8 of a denial of access to their home. They also invoked Article 8 complaining of the effect that this situation has had on their private life and financial situation. These included the financial catastrophe suffered, the move to Saudi Arabia and the consequent separation of the family as well as the inability of the first applicant to work as an architect again and their feelings of helplessness, anguish and frustration.
The applicants claimed, invoking Article 14, that all the above-mentioned violations have taken place because they are Orthodox and of Greek-Cypriot origin, or in the case of the fifth applicant that its owners /members are Orthodox and of Greek-Cypriot origin.
THE LAW
A. 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. In Demopoulos and Others v. Turkey [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. 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 of the application of Article 35 § 1 of the Convention has been established in that regard. As regarded 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 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.
B. Concerning Article 8 (right to respect for home and private life)
Insofar as the second applicant also complained that she had been prevented from returning to the family home which she 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 and Others, cited above, §§ 37 and 133). These complaints also fail for non-exhaustion pursuant to Article 35 §§ 1 and 4 of the Convention.
Insofar as the first, third and fourth applicants complain under Article 8 of being prevented from returning to their homes in which they have no property interest, the property being owned by another family member, the Court would note that the owner of the family home may, as noted above, make a claim before the IPC for restitution, exchange or compensation in lieu of restitution. It cannot be anticipated at this stage whether or not the owner would be successful in obtaining possession of the erstwhile family home or whether, for example, she might accept an offer of friendly settlement of compensation during the proceedings as many previous claimants before the IPC have done. It therefore seems to the Court that these applicants' claims of being unable to return to their former home are contingent on the outcome of any proceedings brought by the owner in respect of her property rights and her decisions as to the eventual disposal of that property if returned to her; these applicants' claimed links with the property themselves have thus become legally tenuous and any return to occupation a somewhat speculative option dependent on the vindication by another of her ownership rights through domestic procedures. In these very particular circumstances, the Court considers that no separate issue arises concerning the applicants' claims about inability to return to homes which are owned by others (see Papayianni and Others v. Turkey, (dec.), nos. 479/07, 4607/10 and 10715/10, 6 July 2010).
Insofar as the applicants referred to the impact on their private lives following their enforced departure from northern Cyprus, the Court would note that the events themselves which took place in 1974 and the aftermath of those events up until 1989 when Turkey ratified the right of individual petition fall outside its temporal competence. No separate issue arises concerning any alleged continuing consequences of those events after that date.
C. Remaining complaint under Article 14 of the Convention (prohibition of discrimination in enjoyment of Convention rights)
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 complaint made by the applicants.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy