FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58678/00
Christina PAPAIOANNOU and Others
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 7 February 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić, judges,
And Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 May 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The eight applicants are a family. The first applicant, Christina Papaioannou, is the mother of the other seven applicants, Ioannis Papaioannou, Demetris Papaioannou, Eftihia Hadjinicolaou (née Papaioannou), Neophytos Papaioannou, Stavros Papaioannou, Panayiotis Papaioannou and Andreas Papaioannou. They are all Cypriot nationals of Greek-Cypriot origin born in 1929, 1949, 1951, 1952, 1957, 1962 and 1966 respectively. Applicants nos. 1, 2, 3, 6 and 7 are living in Deryneia and applicants nos. 4, 5 and 8 are living in Nicosia. They are represented before the Court by Mr A. Demetriades and Ms E.Nathanael, lawyers practising in Nicosia.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are owners and/or part owners of seven plots of land and three houses all situated in the area of Famagusta. Five of the plots of land were used for agricultural purposes and according to the applicants the produce from these plots was the main source of their family income. The three houses were situated on the remaining two plots of land. One of the houses was rented out whilst the other two were the homes of the applicants.
In July 1974, the applicants were forced to abandon their homes and property in Famagusta. They have not had access and/ or use of them ever since.
COMPLAINTS
The applicants alleged a violation of Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1. They stated that since 1974 the Turkish armed forces have continuously prevented them from having access to their home and from exercising their right to the peaceful enjoyment of their possessions. They affirmed that was because they were of Greek-Cypriot origin and belonged to the Greek Orthodox religion.
THE LAW
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. It also recalls that 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 concerning property in the northern part of Cyprus. 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 from the application of Article 35 § 1 of the Convention have been established in that respect. As to 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, or as appropriate their legal heirs, 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.
2. Insofar as the applicants complained that they had been prevented from returning to their homes, 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, cited above, §§ 37 and 133). It accordingly finds that these applicants’ complaints under Article 8 also fail for non-exhaustion of domestic remedies as they have not brought such claims before the IPC. In these particular circumstances, no separate issue arises as concerns any applicant who might make a claim of home in respect of property which he or she does not own (see Papayianni and Others v Turkey, 479/07, (dec.) 6 July 2010).
This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
3. As regards the remaining complaint under Article 14 of the Convention, the Court considers, having regard to the facts of the case, the submissions of the parties and its findings under Article 1 of Protocol No. 1 and Article 8 of the Convention, that no further issue arises for examination
For these reasons, the Court by a majority
Declares the application inadmissible.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy