AS TO THE ADMISSIBILITY OF
Application No. 24463/94
by Alfred John Terence PENTON
against Turkey
The European Commission of Human Rights sitting in private on
14 April 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 28 March 1994 by
Alfred John Terence PENTON against Turkey and registered on
23 June 1994 under file No. 24463/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 20 May 1997 to communicate the
application;
- the observations submitted by the respondent Government on
24 November 1997 and the observations in reply submitted by the
applicant on 12 January 1998.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1926. He is retired
and resides in Burbage, Leicestershire.
The facts of the case, as they have been submitted by the
parties, can be summarised as follows:
In 1970 W.L. Randall Ltd, a company owned by the applicant and
another British citizen, and Mr. P.G.N., a Greek Cypriot, founded
Hosiery Mills Ltd, a company incorporated under Cypriot law. Mr. P.G.N.
owned 51% of the shares and W.L. Randall Ltd 49%. Sometime in 1971 the
applicant became the exclusive owner of W.L. Randall Ltd. Hosiery Mills
Ltd used to manufacture goods in a factory in Famagusta.
In 1974, when the Turkish army entered Famagusta, the applicant
and his partner lost possession of the factory, together with plant
machinery and stock which belonged to their company.
The applicant applied to the authorities of the "Cyprus Turkish
Federal State" for registration of Hosiery Mills Ltd. On
27 February 1975 the authorities of the "Cyprus Turkish Federal State"
requested the applicant to submit a number of documents. On
4 April 1977 the applicant informed these authorities that he had sent
them the documents they had requested by registered mail and that he
was surprised to hear that they had not received them.
On 4 December 1991 the Foreign and Commonwealth Office informed
a Member of Parliament making enquiries on behalf of the applicant that
most commercial claims for moveable property in the northern part of
Cyprus had been settled with the exception of claims from "persons or
companies with Greek, Greek Cypriot or Armenian connections, and those
from companies which have failed to register with the Turkish Cypriot
Register of Companies".
On 6 November 1992 the Foreign and Commonwealth Office informed
the applicant that "it does appear likely ... that the Turkish
authorities did ... receive in 1977 the documents they are now
insisting were never presented to them. Indeed, there is evidence on
the file that a duplicate set of these documents was handed by the High
Commission on 29 November 1977 to M.H., of the Office of the Deputy
Prime Minister and Ministry of Defence." According to the Foreign
Office, "the real problem is the company's Greek or Greek Cypriot
connections and all the rest of the obstacles put in the way of
progress are just so many red-herrings".
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that
he has been deprived of his possessions without compensation.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 March 1994 and registered
on 23 June 1994.
On 20 May 1997 the Commission decided to communicate the
application.
The Government's written observations were submitted on
24 November 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 12 January 1998.
THE LAW
The applicant complains under Article 1 of Protocol No. 1
(P1-1) that he has been deprived of his possessions without
compensation.
Article 25 para. 1 (Art. 25-1) of the Convention provides as
follows:
"The Commission may receive petitions ... from any person, non-
governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties
of the rights set forth in this Convention."
The respondent Government submit that the applicant cannot claim
to be a victim within the meaning of the above provision, since the
property in question belonged to Hosiery Mills Ltd, a legal person
distinct from the applicant.
The applicant claims that he can claim to be a victim because he
is a shareholder and director of Hosiery Mills Ltd as well as a person
working for that company.
The Commission recalls that the term victim in Article 25
(Art. 25) of the Convention denotes the person directly affected by the
act or omission which is in issue (Eur. Court HR, Eckle v. Germany
judgment of 15 July 1982, Series A no. 51, p. 30, para. 66). The
Commission has accepted that persons with a substantial majority
shareholding in a company can, under certain circumstances, claim to
be victims of measures directed against the property of the company
(Kaplan v. the United Kingdom, Comm. Report 17.7.80, para. 131, D.R.
21, p. 23). However, minority shareholders cannot in principle claim
to be victims of such measures (No. 9266/81, Dec. 28.1.83, D.R. 30, p.
155). Piercing the corporate veil can be justified only in exceptional
circumstances (Eur. Court HR, Agrotexim and others v. Greece judgment
of 24 October 1995, Series A no. 330, p. 25, para. 66).
The Commission notes that the applicant is the sole shareholder
of W.L. Randall Ltd. However, that company is not the majority
shareholder of Hosiery Mills Ltd against the property of which the
measures complained of have allegedly been directed. Neither does the
applicant appear to have taken any steps towards having the application
introduced by Hosiery Mills Ltd itself. The Commission does not ignore
the political realities of the situation in Cyprus and could envisage
the existence of special circumstances which might have precluded the
majority shareholder of Hosiery Mills Ltd, a Greek Cypriot, from
cooperating in the taking of all the necessary steps for lodging such
an application. However, the applicant does not invoke the existence
of any such circumstances.
It follows that the applicant cannot claim to be a victim of the
violation complained of. The Commission, therefore, considers that the
application is incompatible ratione personae and that it must be
rejected as incompatible with the provisions of the Convention under
Article 27 para. 2 (Art. 27-2) thereof.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy