POLYCARPOU BROS LTD v. CYPRUS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 25366/94

                      by POLYCARPOU BROS Ltd.

                      against Cyprus

      The European Commission of Human Rights sitting in private on

15 January 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   J.-C. GEUS

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           Mr.   H.C. KRÜGER, 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 30 August 1994 by

POLYCARPOU BROS Ltd. against Cyprus and registered on 5 October 1994

under file No. 25366/94;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to :

-     the Commission's decision of 3 April 1995 to communicate the

      application ;

-     the observations submitted by the respondent Government on

      31 July 1995 and the observations in reply submitted by the

      applicant on 6 October 1995 ;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a company registered in Cyprus. In the

proceedings before the Commission it is represented by Mr. Achilleas

Demetriades, a barrister practising in Nicosia, Cyprus.

      The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

A.    Particular circumstances of the case

      On 10 May 1974 an agreement was drawn up for the purchase by the

applicant company of two plots of land (referred to as plots No. 5 and

21) situated in Finigoudia in Engomi and belonging to the Holy

Monastery of Kykkos, at the price of 42,487 Cyprus pounds. The document

was signed by the representatives of the applicant company, but not by

the representatives of the monastery.

      On 2 June 1974 the applicant company paid 500 pounds to the

monastery, receipt of which was acknowledged by the monastery.

      On 28 May 1985 the monastery wrote to the applicant company

claiming payment of the outstanding sum. It also warned the applicant

company that failure to do so would entail the invalidation of the

agreement of 10 May 1974. The monastery sent the applicant company

reminders on 31 December 1989 and 26 September 1990. On

7 November 1990, the applicant company sent a letter to the monastery

by which it contested its obligation to pay interest on its debt

invoking the legislation concerning persons affected by the Turkish

invasion of July 1974.

      On 31 December 1990, 30 June 1991 and 31 December 1991 the

monastery sent further reminders to the applicant company. On

6 March 1992 the applicant company wrote to the monastery asking the

monastery to recalculate the sum owed in the light of law 24/79 which

had frozen the applicant company's debts. The monastery sent the

applicant company another reminder on 9 July 1992.

      On 11 January 1993 the representatives of the applicant company

addressed a letter to the monastery offering to pay the outstanding

amount and asking for the transfer of the ownership of the two plots

of land within thirty days. The applicant company claimed (a) that its

debt to the monastery remained frozen as from 14 August 1974 by virtue

of law 24/79 and (b) that the agreed total surface of the two plots of

land was 21,000 square feet and not 15,450 square feet, as it had been

noted in the margin of the above-mentioned draft agreement without its

consent.

      In a further letter addressed to the monastery on 8 March 1993

the applicant company offered to pay interest on its debt,

notwithstanding the provisions of law 24/79. On 27 July 1993 the

applicant company proposed to the monastery the appointment of an

expert who would estimate the current value of the two plots of land;

it also offered to pay his fees.

      On 29 December 1994 the applicant company renewed its offer

declaring at the same time its intention to institute legal proceedings

against the monastery. In this connection it requested the monastery's

consent to the institution of such proceedings in accordance with

Article 23 para. 9 of the Constitution.

      In a letter dated 4 January 1995 addressed to the applicant

company the monastery claimed (a) that no contract had ever been

concluded, (b) that the applicants had paid the sum of 500 pounds with

a view to reserving two of the plots (No. 5 and 21) into which the land

of the monastery in Finigoudia would have been divided if the monastery

had been successful in obtaining the necessary planning permission,

(c) that the plans of the monastery to sell its land in Finigoudia were

cancelled as a result of its failure to obtain such a permission and

(d) that the sum of 500 pounds had always been at the disposal of the

applicant company, which had refused to recover it. The monastery

further informed the applicant company that it did not consent to the

institution of proceedings against it.

      On 6 October 1995 the applicant company wrote to the monastery

claiming that the document drawn up on 10 May 1974 was not a draft but

a final agreement. It also claimed that it was standard practice for

the monastery not to sign the agreements it concluded. The applicant

company further referred to the monastery's letter of 28 May 1985 by

which the monastery had accepted the existence of an agreement.

B.    Relevant domestic law

      Article 23 of the Constitution of Cyprus provides as follows:

      "1.  Every person, alone or jointly with others, has the

      right to acquire, own, possess, enjoy or dispose of any

      movable or immovable property and has the right to respect

      for such right.

      ...

      2.   No deprivation or restriction or limitation of any

      such right shall be made except as provided in this

      Article.

      3.   Restrictions or limitations which are absolutely

      necessary in the interest of the public safety or the

      public health or the public morals or the town and country

      planning or the development and utilization of any property

      to the promotion of the public benefit or for the

      protection of the rights of others may be imposed by law on

      the exercise of such right.

           Just compensation shall be promptly paid for any such

      restrictions or limitations which materially decrease the

      economic value of such property: such compensation to be

      determined in case of disagreement by a civil court.

      4.   Any movable or immovable property or any right over or

      interest in any such property may be compulsorily acquired

      by the Republic or by a municipal corporation or by a

      Communal Chamber for the educational, religious, charitable

      or sporting institutions, bodies or establishments within

      its competence and only from the persons belonging to its

      respective Community or by a public corporation or a public

      utility body on which such right has been conferred by law,

      and only-

           (a) for a purpose which is to the public benefit and

      shall be specially provided by a general law for compulsory

      acquisition which shall be enacted within a year from the

      date of the coming into operation of this Constitution; and

           (b) when such purpose is established by a decision of

      the acquiring authority and made under the provisions of

      such law stating clearly the reasons for such acquisition;

      and

           (c) upon the payment in cash and in advance of a just

      and equitable compensation to be determined in case of

      disagreement by a civil court.

      ...

      7.   Nothing in paragraphs 3 and 4 of this Article

      contained shall affect the provisions of any law made for

      the purpose of levying execution in respect of any tax or

      penalty, executing any judgment, enforcing any contractual

      obligation or for the prevention of danger to life or

      property.

      ...

      9.   Notwithstanding anything contained in this Article no

      deprivation, restriction or limitation of the right

      provided in paragraph 1 of this Article in respect of any

      movable or immovable property belonging to any See,

      monastery, church or any other ecclesiastical corporation

      or any right over it or interest therein shall be made

      except with the written consent of the appropriate

      ecclesiastical authority being in control of such property

      and the provisions of paragraphs 3, 4, 7 and 8 of this

      Article shall be subjected to the provisions of this

      paragraph:

      Provided that restrictions or limitations for the purposes

      of town and country planning under the provisions of

      paragraph 3 of this Article are exempted from the

      provisions of this paragraph."

      In its decision of 21 December 1961 in the case of Evlogimenos

and the Republic the Supreme Court considered that the right of

property safeguarded by Article 23 of the Constitution was not an

abstract right, but a right as defined and regulated by the law

relating to civil law rights in property. Deprivations  or restrictions

or limitations imposed under a law regulating civil rights in property

were not contrary or inconsistent with Article 23, because Article 23

para. 2 was inapplicable to provisions of law regulating such rights.

      These principles were re-affirmed in the Supreme Court's

decisions of 19 April 1962 in Re Ali Ratip of Ktima and 28 June 1967

in the case of Chimonidis v. Mangli.

COMPLAINTS

1.    The applicant company complains of a violation of Article 6

para. 1 of the Convention in that it is denied access to the courts for

the determination of its civil rights under the contract it has

concluded with the monastery.

2.    The applicant company complains of a violation of its rights

under Article 1 of Protocol No. 1 in that it is prevented from

obtaining possession of the plots of land it has agreed to purchase,

by virtue of Article 23 para. 9 of the Constitution which grants church

bodies judicial immunity.

3.    The applicant company also complains under Article 13 of the

Convention that it does not have any effective remedy against the

violation of its rights under the Convention, because all domestic

courts are bound by the Constitution.

4.    The applicant company finally complains under Article 14 of the

Convention that it is discriminated against on religious grounds in

that its opponent is in a more favourable position by virtue of being

a church body.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 30 August 1994 and registered

on 5 October 1994.

      On 3 April 1995 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on admissibility and merits.

      The Government's observations were submitted on 31 July 1995. On

6 October 1995 the applicant company submitted observations in reply.

THE LAW

FIRST ALTERNATIVE

      The applicant company complains that, by virtue of Article 23

para. 9 of the Constitution, it cannot sue the monastery in order to

obtain possession of the plots of land it has agreed to purchase. It

claims that this amounts to a violation of its rights under Articles 6

para. 1, 13 and 14 (Art. 6-1, 13, 14) of the Convention and Article 1

of Protocol No. 1 (P1-1).

      The Commission considers that the application centres upon the

complaint concerning access to court under Article 6 para. 1

(Art. 6-1) of the Convention, which, insofar as relevant, provides the

following:

      "In the determination of his civil rights and obligations ...

      everyone is entitled to a ... hearing ...  by a tribunal ... ."

      The Government submit that the applicant is not prevented by

Article 23 para. 9 of the Constitution from initiating civil

proceedings against the monastery or from enforcing any judgment that

may ensue. There is no case-law to the effect that the consent of the

Church is required before it can be sued or have a court decision

enforced against it in civil law matters. On the contrary, the Supreme

Court of Cyprus has repeatedly held that Article 23 of the Constitution

cannot be understood as being intended to interfere with matters of

civil law, such as rights to property conferred by a law regulating

civil law rights. As a result, the deprivation of the right to property

which may be effected by virtue of rules protecting rights arising

under a contract does not fall within the scope of Article 23 and

cannot be affected by any of the provisions of Article 23, including

the provisions of para. 9. It follows that the applicant should have

tried to exhaust domestic remedies before applying to the Commission.

      The applicant company does not agree with the interpretation

given to Article 23 of the Constitution by the Government. It relies

on the express wording of Article 23 para. 7, to which Article 23

para. 9 refers and stresses that Article 23 para. 7 refers in

unambiguous terms to the enforcement of contractual obligations.

Moreover, the contractual relationship at issue differs from other

contractual relationships because the Constitution has granted special

rights to one of the two parties. It is noteworthy that the monastery

has already relied on Article 23 para. 9 of the Constitution to refuse

its consent for the action intended against it.

      The Commission recalls that, in accordance with its case-law,

where doubts exist as to the effectiveness of a domestic remedy, that

remedy must be tried (No. 6271/73, Dec. 13.5.76, D.R. 6 p. 62;

No. 9984/82, Dec. 17.10.85, D.R. 44 p. 54).

      The Commission takes note of the case-law of the Supreme Court

concerning deprivations, restrictions and limitations imposed under a

law regulating civil rights in property and their compatibility with

Article 23 of the Constitution. It considers that it has not been

established that the refusal of the monastery to consent to the

institution of proceedings against it would effectively bar under

Article 23 para. 9 of the Constitution the applicant company from suing

the monastery under the alleged contract. It follows that the applicant

company should have instituted proceedings before the domestic courts,

before applying to the Commission.

      In these circumstances, the Commission, moreover, considers that

it need not address the purely theoretical issue of whether the

monastery could refuse under Article 23 para.  9 of the Constitution

to comply with a decision which might have been issued against it if

the applicant company had instituted successful proceedings under the

contract.

      In the light of all the above, the Commission concludes that the

applicant company has not exhausted domestic remedies under Article 26

(Art. 26) of the Convention in connection with its complaint concerning

lack of access to a court. The same holds true in respect of the

applicant company's remaining complaints.

      It follows that the application must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission       President of the Commission

      (H.C. KRÜGER)                    (S. TRECHSEL)

 

Full & Egal Universal Law Academy