FOURTH SECTION
DECISION
Application no. 40682/10
Hatice INAL
against Cyprus
The European Court of Human Rights (Fourth Section), sitting on 25 September 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 22 June 2010,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
The applicant, born in 1929, is a British and Cypriot citizen resident in London.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is owner of a half share in a house in Larnaca, which in 1974 was rented out to tenants. Following 1974, the applicant was unable to access or enjoy the property as it had been taken under the control of the authorities and subsequently under custodianship pursuant to Law 139/1991.
The co-owner of the property, the applicant’s sister, had lodged an application with the Court under application no. 18163/04 claiming violation principally under Article 1 of Protocol No. 1 in respect of that property and another property. On 14 January 2010, the Court struck the case from the list following a friendly settlement by the parties, involving the release of the property from custodianship and payment of compensation in the sum of 300,000 Cypriot pounds.
On 9 February 2010, the applicant became aware of the settlement. Her lawyer wrote to the Ministry of the Interior on 22 February 2010, claiming breaches of the applicant’s property rights due to the custodianship and compensation.
By letter dated 22 December 2010, the Ministry rejected the applicant’s claims pointing out that the property had been released from custodianship in October 2008 and that compensation had been paid for loss of use of the entire property to the other co-owner, Mrs Sofi, to whom they advised that the applicant should address her claim as co-owner for a share in the compensation paid.
B. Relevant domestic law and practice
The relevant case-law and laws are set out in Kazali and Others v Cyprus (no. 49247 et al, §§34-100, decision of 6 March 2012).
COMPLAINTS
The applicant invoked Article 1 of Protocol No. 1 and Article 8 as regards lack of access to her property and refusal to pay her compensation for loss of use, Articles 6 and 13 alleging lack of access to court and lack of an effective remedy and Article 14 alleging discrimination against Turkish Cypriots.
THE LAW
The applicant complained of inability to access and enjoy her property rights in a co-owned property in Cyprus taken under the control of the authorities following events in 1974, invoking Article 1 of Protocol No. 1 which provides:
“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 applicant also invoked Articles 8 (protection of home and private life) and 14 (prohibition of discrimination) in respect of this matter.
The Court notes that in fact the custodianship had been lifted on the applicant’s property in October 2008 and that the essence of her complaints concerns the refusal of the Cypriot authorities to pay her compensation for loss of use since 1974. It appears that the Government take the view that they have paid compensation for loss of use of the property as a whole to the other co-owner, the applicant’s sister and that it is for the applicant to assert her rights as joint owner in respect of those proceeds. The applicant has not given any explanation whether she has done so and with what result. In a letter to the authorities, it appears that she takes the view that the other co-owner brought her application only in respect of her half-share in the property and was not representing the applicant or her share.
It is not for the Court to settle this apparent dispute of fact and law between the applicant and the authorities. On either view, the applicant has failed to take the steps available under domestic law to assert her rights, whether by pursuing her claim as joint owner in the property to a half share in the settlement concerning her property or by pursuing a claim in the District Court under the amended Law 139/1991 which since 2010 enables persons to make claims for compensation as regards breaches of rights to property affected by the custodianship regime. In the Kazali decision (cited above), having examined arguments as to the availability and effectiveness of the amended law, the Court found:
“152. In conclusion, the new provisions in Law 139/1991 are formulated in broad terms and by express reference to the guarantees of the Convention as interpreted by this Court. They allow the applicants to make a claim to the Custodian alleging a violation of their Convention rights and, in the absence of a favourable response, to lodge a case in the District Court. The remedies available include an order for restoration of the property and an order for payment of compensation to cover pecuniary and non-pecuniary damage as well as costs and expenses.
153. The Court therefore 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 cases have not made use of this mechanism and their complaints under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies...”
The Court finds no reason to differ from this conclusion in the present application.
The complaints under Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§1 and 4 of the Convention.
Insofar as the applicant invokes Articles 6 and 13 of the Convention, complaining of lack of access to court and lack of an effective remedy, the Court refers to its reasoning above that the applicant can bring her claims before the domestic courts and apply for a range of remedies. This part of the application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy