FOURTH SECTION
DECISION
Application no. 6860/09
Zehra IZZET MEHMET and others against Cyprus
and 12 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 19 June 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 applications lodged on the dates set out in the appendix,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are either owners, or the heirs of owners, of property which is governed by the custodianship regime under Law 139/1991.
None of the applicants have taken proceedings in the domestic courts or brought such proceedings to a conclusion. The third applicant in no. 5702/10 claims to have proceedings pending but no documents or details have been provided.
i. Mehmet and Others v. Cyprus, no. 6860/09
3. The first two applicants wished to transfer as gift their properties in the Republic of Cyprus to their niece and nephew, the third and fourth applicants. On 10 June 2008, the Custodian refused permission for the transfer as the properties were classified as Turkish-Cypriot properties.
ii. Dayanch v Cyprus, no. 35381/09
4. The applicant was one of the heirs and an administrator of property of his deceased father and mother, Turkish Cypriots who fled north in 1963. This property was now being used as a primary school. The applicant contacted the Minister of Education with a view to claiming his property rights and damages. No response was received.
iii. Ahmet and Others v. Cyprus, no. 3731/10
5. The applicants are the heirs and administrators of the estate of three deceased Turkish- Cypriot relatives consisting of a property in the Republic of Cyprus. In 2003 they discovered the house had been demolished and another building erected. They made an application to the Ministry of Interior for the return of property and payment of loss of use; the authorities refused.
iv. Adademir v. Cyprus, no. 5239/10 (see also case 38947/10 below)
6. The applicant, a Turkish Cypriot, bought land in 1958 and rented it out. The tenant paid rent until 1974. The Cypriot Government later expropriated part of the land, building a road down the middle. Under Law 139/91, the Custodian appeared to have terminated the lease with the applicant’s tenant and rented the property to another person.
v. Yahya (Misirli) and Others v. Cyprus, no. 5702/10
7. The three applicants are Turkish Cypriots, who left Cyprus either before or in 1974 and who owned or have inherited property in the Republic. The third applicant stated that his father’s property had been expropriated and a bus terminal built there. The second applicant brought court proceedings (no documents provided) which he said were still pending; the other applicants stated that no proceedings were brought due to the failures of their lawyers.
vi. Ayshe Hussein v. Cyprus, no. 22856/10
8. The applicant, a Turkish-Cypriot owner of property sold to the Government, made a claim for compensation for loss of use from 1974 to 2006 which was refused by the authorities who relied on Section 9 of Law 139/91. No proceedings were taken.
vii. Onkaya v. Cyprus, no. 24395/10
9. The applicant owned, wholly or in part, twelve plots of land in the Republic which he had not been able to use since 1963. One plot was used as a Post Office by the authorities and another was rented out as a giftshop without his consent. No proceedings had been taken.
viii.Onkaya and Others v. Cyprus, no. 24516/10
10. The applicants are the heirs (spouse and children) of the deceased owner of property in the Republic of Cyprus. Greek Cypriots have been using the property, a house and shops, since 1963, without their consent.
ix. Gurtekin and Others v. Cyprus, no. 33751/10
11. The 21 Turkish-Cypriot applicants, who abandoned their homes and property in the village of Matyat in 1963, wrote a petition to the Ministry of Internal Affairs in 2010 for return of land and compensation. No reply was received.
x. Adademir v. Cyprus, no. 38947/10
12. The applicant, a Turkish-Cypriot who left the south in 1974, owns 11 properties from which she previously collected rents. On 4 March 2010, she made a claim to the Ministry of Internal Affairs for return of her property; no answer was received.
xi. Mehmed and Mehmed v. Cyprus, no. 39199/10
13. The applicants, Turkish Cypriots, own, wholly or in part, three plots in the Republic, bought in 1973. Since 1974, they have been unable to use or develop these plots.
xii. Bagcioglu and others v. Cyprus, no. 50401/10
14. The applicants are heirs of Turkish Cypriots who owned property in the south and fled in 1974; the property had tenants but no rent had been received since. On 27 April 2010 the applicants applied to the authorities for restitution of their property without success.
xiii.Shahin and Others v. Cyprus, no. 3605/11
15. The applicants are heirs of their Turkish-Cypriot father who owned a house and business property in the Republic of Cyprus. The family left in 1974. Tenants declined to pay rent due to the custodianship regime and gave rents to the authorities. The applicants sought unsuccessfully after the death of their father in 1985 to obtain possession of the properties. Some of the property has been demolished, other plots compulsorily acquired by the State. No court proceedings were taken.
B. Relevant domestic law and practice
16. 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
17. The applicants all invoked Article 1 of Protocol No. 1, complaining variously that they were unable to enjoy possession of property under the custodianship regime, or were unable to sell or transfer such property, or that they had not received any compensation for compulsory acquisition by the State of their property or for loss of use of their property over the intervening years.
18. The applicants also variously invoked Article 8 due to alleged interference with home or possessions, Article 14 alleging discrimination or Articles 6 and 13 complaining of a lack of access to court or an effective remedy in respect of their complaints. The applicants in no. 5702/10 also invoked Articles 2 and 3.
THE LAW
19. The applicants complained of interference with property rights, claiming that they were unable to enjoy possession, or sell or transfer, or obtain compensation for loss of use of such property, which was subject to the custodianship regime imposed by Law 139/1991 in respect of property regarded as having been abandoned by Turkish-Cypriot owners in 1974.
20. The applicants invoked principally 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.”
21. Some of the applicants also invoked Articles 8 (protection of home and private life) and 14 (prohibition of discrimination) in respect of these complaints.
22. The Court notes that none of the applicants have shown that they have brought proceedings in the courts of Cyprus raising their various complaints. While the second applicant in application no. 5702/10 refers to pending proceedings, no information or documents relating to these proceedings have been provided. The Court recalls that in 2010 the impugned Law 139/1991 was amended to include express provisions indicating that the Custodian could lift the custodianship on Turkish-Cypriot properties and that persons could apply to the District Court where they considered that their rights had been violated in respect of decisions relating to that property and wished to apply for compensation in that regard.
23. Various applicants have asserted that such proceedings would be pointless, referring to case-law of the domestic courts, particularly of the Supreme Court in the context of cases lodged pursuant to Article 146, where Law 139/1991 had been found justified on the ground of the law of necessity.
24. In the recent decision of Kazali (cited above), the Court acknowledged that the case-law of the Cypriot courts cited by the parties, which pre-dated the entry into force of the amended Law, indicated a resistance to the argument that the provisions of Law 139/1991 violated the Convention, and in particular Article 1 of Protocol No. 1. However, there was as yet no reference in domestic court decisions to the new legislative provisions, in particular, section 6A of Law 139/1991, and as a consequence the Court considered that it was not clear how the courts would approach their task of interpreting the provisions of the amended Law. In the event of an unsuccessful decision in the District Court, an appeal would be possible to the Supreme Court. The Court was satisfied that, in examining cases brought under the amended Law, the Cypriot courts would have due regard to this Court’s case-law concerning, in particular, Article 8 and Article 1 of Protocol No. 1 and that in handing down judgments they would examine the matter afresh, setting out in full their reasoning and explaining clearly whether and how the restrictions imposed on Turkish-Cypriots’ property are justified under those Articles.
25. Insofar as it is also alleged that it is not entirely clear the extent to which the provisions contained in Law 139/1991 apply to applicants whose properties have been compulsorily purchased or requisitioned or whether compensation could be withheld under section 9 of the Law, the Court in the Kazali decision (cited above) found that the new section 6A referred to the rejection of a “claim” by the Custodian giving rise to a right to bring an action in the District Court and allege a violation of the Convention. Nothing presented to the Court by the Government or the applicants in those cases was found to preclude an application being made to the Custodian for payment of compensation agreed by the Custodian in respect of compulsory acquisition or requisition of Turkish-Cypriot property; proceedings could also be taken in the courts in the event of an unfavourable decision. 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...”
26. The Court finds no reason to differ from this conclusion in the present applications. 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.
27. Insofar as some of the applicants invoke 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 applicants can bring their claims before the domestic courts and apply for a range of remedies. Insofar as the applicants in application no. 5702/10 invoked Articles 2 and 3 of the Convention, these complaints are misconceived and unsubstantiated. These parts of the applications must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Joins the applications;
Declares the applications inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
APPENDIX
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
6860/09
08/12/2008
Zehra IZZET MEHMET
09/08/1929
Nicosia
Cypriot
Akile NERIMAN MUNIR
02/08/1927
Nicosia
Cypriot
Halid KERIM IZZET
11/02/1973
Berkshire
British
Vedia EMEL IZZET
23/05/1970
Berkshire
British
Achilleas DEMETRIADES
35381/09
04/06/2009
Ata DAYANCH
05/02/1947
Lefkosa
Cypriot
Ata DAYANCH
3731/10
12/12/2009
Mehmet Hulusi AHMET
Lefkosa
Cypriot
Hatice HASAN MANDILA
Lefkosa
Cypriot
Hayriye EMIR OSMAN
Lefkosa
Cypriot
Nezihe Nevruz MEHMED YILDIRIM
26/02/1931
Lefkosa
Cypriot
Hatice Söyeda MEHMET
ALKIN
12/06/1937
Lefkosa
Cypriot
Alpay MEHMET HULUSI OKUT
01/08/1946
Lefkosa
Cypriot
Tarik M. KADRİ
5239/10
22/12/2009
Aysel ADADEMIR
15/01/1941
Lefkoşa
Cypriot
Yaprak RENDA
5702/10
22/12/2009
Ayşe YAHYA (MISIRLI)
28/03/1939
Lefkosa
Turkish, British
Ahmet Hikmet MEHMET ROZET
03/12/1942
Girne
British
Suleyman Sevket YAHYA
31/01/1937
Croydon, UK.
Turkish, British
Yaprak RENDA
22856/10
14/04/2010
Ayshe HUSSEIN
02/12/1931
London
British
Meral HUSSEIN ECE
24395/10
13/04/2010
Oguz ONKAYA
20/02/1925
Ankara
Cypriot
Zaim NECATIGIL
24516/10
13/04/2010
Oguz ONKAYA
20/02/1925
Ankara
Cypriot
Dilek KURTOGLU
27/09/1956
Ankara
Cypriot, Turkish
Dincay FIRTINA
16/03/1958
Ankara
Cypriot, Turkish
Sitki ONKAYA
22/10/1960
Ankara
Cypriot, Turkish
Zaim NECATIGIL
33751/10
16/04/2010
Nazli GÜRTEKİN
28/10/1926
Lefkoşa / Mersin 10
Turkish
Sultan KOROGLU
24/05/1960
Lefkosa
Turkish
Gulsun UCAR
10/10/1929
Lefkosa
Turkish
Ayten GURTEPE
08/03/1939
Girne
Turkish
Osman Sevket OZMATYATLI
26/02/1946
Lefkosa
Turkish
Hatice Sevket OZTUMEN
08/03/1948
Lefkosa
Turkish
Osman BEKTAS
20/10/1939
Lefkosa
Turkish
Ali BAYKAL
14/06/1938
Lefkosa
Turkish
Sultan HANCER
30/04/1934
Lefkosa
Turkish
Nazif KALKANER
06/12/1949
Lefkosa
Turkish
Suleyman UCAR
03/05/1927
Lefkosa
Turkish
Naim ERKSEL
26/06/1927
Lefkosa
Turkish
Azamettin OZNUR
15/03/1941
Magusa
Turkish
Muftaheddin OZNUR
19/02/1946
Lefkosa
Turkish
Serife OZNUR
1934
Lefkosa
Turkish
Zulfikar OZNUR
1930
Lefkosa
Turkish
Ali Sevket OZMATYATLI
15/03/1950
Lefkosa
Turkish
Mustafa Sevket OZMATYATLI
15/04/1943
Lefkosa
Turkish
Salahi BEKTAS
12/12/1932
Lefkosa
Turkish
Enver YETINER
22/07/1944
Lefkosa
Turkish
Ayten ERKSEL
15/05/1941
Lefkosa
Turkish
Yaprak RENDA
38947/10
15/04/2010
Aysel ADADEMIR
15/01/1941
Lefkoşa
Cypriot
Yaprak RENDA
39199/10
06/07/2010
Sevket MEHMED
24/02/1931
London
British, Turkich
Muazzez MEHMED
11/11/1935
London
British, Turkish
Zaim NECATIGIL
50401/10
22/06/2010
Lutfiye BAGCIOGLU
26/07/1925
Nicosia
Cypriot
Guler BAGCIOGLU
11/07/1948
Nicosia
Cypriot
Huseyin BAGCIOGLU
01/08/1953
London
British
Yaprak RENDA
3605/11
22/12/2010
Sigrun SHAHIN
03/02/1936
London
British
Emine Pervin LARSSON
09/08/1949
Oxon
British
Eda VON LILIENFELD
12/12/1958
Oberkochen
German, Turkish
Konce Serif SAHIN IGREG
14/10/1959
Kent
British, Cypriot, Turkish
Hassan SHAHIN
28/11/1961
Berlin
British, Cypriot, Turkish
Indji Muazzez SHAHIN BINBOGA
14/02/1963
London
British, Cypriot, Turkish
Yaprak RENDA
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