FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33574/02
by Chris and Athena STYLIANOU
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 1 June 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Işıl Karakaş, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 September 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 Republic of Cyprus as intervening party,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Chris (Takis) Stylianou and Mrs Athena (Athenoulla) Stylianou, are of Greek-Cypriot origin and have dual nationality, Cypriot and Australian. They were born in 1947 and in 1948 respectively and live in Australia. They are represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia, Cyprus.
The Turkish Government (“the Government”) were represented by their Agent, as were the intervening Government, the Republic of Cyprus.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were married in 1971. They built a house on land donated by the father of the second applicant; however the land had not been transferred into their names. It appears that the second applicant's father has since died.
The second applicant owned two plots of land situated in Kythrea. The first applicant was a businessman and prior to 1974 had run a petrol station in Kythrea on rented land and premises.
Since August 1974 the applicants have not had access to and/or use of their home and property in the northern part of Cyprus.
COMPLAINTS
The applicants complained under Article 1 of Protocol No. 1 that they had been denied access to, and enjoyment of their properties in northern Cyprus. They complained under Article 8 about lack of access to home and under Article 14 that the above matters disclosed discrimination.
THE LAW
A. Concerning property issues (Article 1 of Protocol No. 1)
The Court notes that, according to the submissions of the applicants, only the second applicant is the owner of any plots of land. Insofar as the first applicant refers to his petrol business, it appears that this was conducted in rented property and the nature of any ongoing proprietary rights still subsisting at this time has not been specified. However, insofar as the applicants complained of interference with any 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 has 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 applicants in the present case 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)
The Court notes that it does not appear that the applicants owned the land on which their home was built in 1971 and where they lived until 1974. While they referred to the apparent intention of the second applicant's father to transfer the property into their name, it seems that this was never done. The second applicant's father has since died. It is not apparent whether he transferred any of his property to any other member of the family or person prior to his death or whether his estate, including the plot on which the applicants' home was built, has passed to his heirs. Insofar as the second applicant may have inherited a share in her father's property, she would be able to lodge a claim with the IPC as outlined above, and in that application make the claim for non-pecuniary compensation relating to her complaints about interference with the applicants' home. However, if it were the case that the applicants still have no proprietary claim over their previous home which is instead owned by unspecified other(s), the Court would perceive no subsisting and concrete link with that property some thirty-six years later which would disclose an ongoing interference with a right to respect for home at the present time.
It follows that this part of the application must be rejected as either failing to comply with the requirements of exhaustion of domestic remedies or as manifestly ill-founded, under Article 35 §§1, 3 and 4 respectively.
C. Remaining complaint (Article 14 of the Convention)
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, the Court considers that no further issue arises for examination concerning the remaining complaint made by the applicants.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy