Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 29515/95

Xenis Larkos

against

Cyprus

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-23) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 24-42) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 24). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 25). . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 14 of the Convention

taken in conjunction with Article 8 thereof

(paras. 26-34). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 35). . . . . . . . . . . . . . . . . . . . .6

D. As regards Article 14 of the Convention

taken in conjunction with Article 1 of Protocol No. 1

(paras. 36-39). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 40). . . . . . . . . . . . . . . . . . . . .7

E. Recapitulation

(paras. 41-42). . . . . . . . . . . . . . . . . . .7

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION. . . . . . . .8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Cypriot citizen, born in 1936 and resident in

Nicosia. He was represented before the Commission by Mr A. Demetriades,

a lawyer practising in Nicosia.

3. The application is directed against Cyprus. The respondent

Government were represented by their Agent, Mr Alecos Markides, the

Attorney-General of the Republic of Cyprus.

4. The case concerns the lack of protection of Government tenants

under domestic law. The applicant invokes Article 14 of the Convention

taken in conjunction with Article 8 thereof and Article 1 of Protocol

No. 1.

B. The proceedings

5. The application was introduced on 21 November 1995 and registered

on 12 December 1995.

6. On 10 September 1996 the Second Chamber of the Commission

decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to

give notice of the application to the respondent Government and to

invite the parties to submit written observations on its admissibility

and merits.

7. The Government's observations were submitted on 12 November 1996.

The applicant replied on 7 February 1997 after an extension of the

time-limit.

8. On 21 May 1997 the First Chamber of the Commission, to which the

case had been transferred, declared the application admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 3 June 1997 and they were invited to submit such

further information or observations on the merits as they wished. The

parties did not avail themselves of this possibility.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 14 January 1998 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. On 1 May 1967 the applicant rented from the Government of Cyprus

a house in which he has been living ever since with his family. He

signed a contract, a copy of which exists in the file. This contract

provided for the payment of rent by the applicant and for a termination

date.

17. On 3 December 1986 the Ministry of Finance informed the applicant

that the permission by virtue of which the applicant occupied the

premises was revoked. It requested the applicant to surrender the

property by 30 April 1987. On 3 June 1987 the Attorney General warned

the applicant that, if he did not evacuate the premises before

31 July 1987, he would take legal action against him.

18. On 3 July 1987 the applicant replied that he had been living

together with his large family in the house in question for twenty

years. He had been obliged to spend significant sums of money for the

maintenance and improvement of the premises, because the competent

public authorities had shown no interest. Since he was a "statutory

tenant", he intended to continue to occupy the premises as long as he

was protected by law.

19. On 9 March 1989, replying to a second letter by the Attorney

General dated 5 January 1989, the applicant reiterated his earlier

position.

20. On 3 February 1990 the Government of Cyprus instituted

proceedings against the applicant before the District Court of Nicosia.

The Government submitted, inter alia, that the applicant did not occupy

the flat by virtue of a tenancy agreement, but that the flat had been

allocated to him by administrative order because of his position in the

civil service.

21. On 5 February 1992 the District Court of Nicosia gave judgment

against the applicant. The court did not pronounce on the issue of the

title by virtue of which the applicant occupied the flat. The court

interpreted the Rent Control Law (Law 23/1983) and concluded that it

only bound private owners of property and not the Government of Cyprus.

As a result, a person who rented premises owned by the Government was

not a "statutory tenant" protected by that law. The applicant was

ordered to vacate the premises before 30 June 1992.

22. The applicant appealed against the judgment to the Supreme Court

relying on Article 14 of the Convention and Article 1 of Protocol

No. 1. At the hearing before the Supreme Court the applicant relied,

in principle, on the following argument: his rights as a tenant were

"property rights" within the meaning of Article 1 of Protocol No. 1 and

he was being subjected to discrimination in the enjoyment of these

rights, because Law 23/83, as interpreted by the District Court of

Nicosia, gave no protection to the Government's tenants, while the same

law protected the Government as a "statutory tenant" when the

Government rented premises owned by a private individual. However, the

applicant also submitted that he enjoyed less protection than tenants

of private persons.

23. On 22 May 1995 the Supreme Court dismissed the applicant's

appeal, considering that the applicant could not claim any property

rights under Article 1 of Protocol No. 1 as a tenant. The Court also

found that, in any event, the notion of equality did not require that

a person who enjoyed the protection of Law 23/83 as a tenant should be

automatically required to grant the same protection to his or her

tenants if that person happened to own property. Finally, the Court

considered, in an obiter dictum, that even if the case concerned the

different treatment reserved by the law to property rented out by

private owners and to property rented out by the Government, there

would be no violation of the Constitution or the Convention because "it

would be reasonable to consider that it is not necessary to grant

protection (to tenants) vis-à-vis the Government which is not in the

same position as the private owners and it is not expected to

administer the property of State with criteria similar to those guiding

the private owners". Further to this decision, the applicant was

expelled from the house.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

24. The Commission has declared admissible the applicant's complaint

that, being a Government tenant, he enjoyed less protection in respect

of his rights to respect for his home and peaceful enjoyment of his

property than tenants of private persons, because he was not protected

against expulsion after the termination of his contract.

B. Points at issue

25. What is at issue is whether there has been a violation of

Article 14 (of the Convention taken in conjunction with Article 8 (Art.

14+8, P1-1) thereof and Article 1 of Protocol No. 1 (P1-1).

C. As regards Article 14 of the Convention taken in conjunction with

Article 8 (Art. 14+8) thereof

26. Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

27. Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

28. The applicant argues that there has been a violation of

Article 14 of the Convention in conjunction with Article 8 (Art. 14+8)

thereof, because the decision of the Supreme Court which interpreted

Law 23/83 in a discriminatory manner resulted in his not being

protected from eviction from his home. The applicant points out that

the Supreme Court did not advance any reasons why he should enjoy less

protection than tenants of private owners. In any event, he submits

that he is the only Government tenant having had to face eviction.

29. The Government submit that all the tenants of the Government are

treated equally. They also argue that, as the Supreme Court pointed

out, it is not necessary to extend to the tenants of the Government the

protection enjoyed by the tenants of private owners, because the

Government is not expected to administer the property of the State with

criteria similar to those guiding private owners.

30. The Commission notes, as a preliminary point, that the applicant

occupied the house in question by virtue of a contract which he had

signed with the Government on 1 May 1967. This agreement had many of

the characteristics of ordinary lease contracts providing for the

payment of a rent and a termination date.

31. The Commission recalls that, according to the case-law of the

Court, the guarantee of Article 14 (Art. 14) of the Convention has no

independent existence in the sense that it relates solely to rights and

freedoms set forth in the Convention. Nevertheless, a measure which in

itself is in conformity with the requirements of the Article enshrining

the right or freedom in question, may infringe this Article when read

in conjunction with Article 14 (Art. 14) for the reason that it is of

a discriminatory nature (Eur. Court HR, judgment of 23 July 1968 in the

Belgian Linguistic case, Series A no. 6, p. 33, para. 9).

32. The Commission considers that, although Article 8 (Art. 8) of the

Convention gives rise to positive obligations for States, it might not

necessarily require States to take measures to protect tenants from

expulsion after the termination of the contracts by virtue of which

they occupied their "homes". However, Cyprus has taken such measures

by enacting the Rent Control Law (Law 23/1983). Since this law

regulates "the right to respect for one's home" under Article 8

(Art. 8) of the Convention, it must apply in a non-discriminatory

manner in accordance with Article 14 (Art. 14) thereof.

33. However, this law, as interpreted by the Supreme Court, does not

protect Government tenants from expulsion from their homes after the

termination of their contracts. The applicant being such a tenant he

was, therefore, treated differently from tenants of private owners who

enjoy the protection of Law 23/1983. According to the case-law of the

Court, a differential treatment amounts to a violation of Article 14

of the Convention taken in conjunction with Article 8 (Art. 14+8)

thereof if it does not have a legitimate aim and if there is no

reasonable proportionality between the means employed and the aim

sought to be realised (see above-mentioned judgment in the Belgian

Linguistics case, p. 34, para. 10).

34. The Commission notes that the only argument advanced by the

Government in order to justify this differential treatment was that

they are not expected to administer the property of the State with

criteria similar to those guiding private owners. The Commission

considers that this cannot amount in itself to an objective and

reasonable justification, considering that the tenancy agreement which

the applicant had concluded with the Government was similar to those

concluded between private individuals. No other arguments having been

advanced, the Commission considers that the applicant was discriminated

against in the enjoyment of the right to respect for his home, since

he, being a Government tenant, did not have the protection which

tenants of private owners had against expulsion after the termination

of their contracts.

CONCLUSION

35. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 14 of the Convention taken in

conjunction with Article 8 (Art. 14+8) thereof.

D. As regards Article 14 of the Convention taken in conjunction with

Article 1 of Protocol No. 1 (Art. 14+P1-1)

36. Article 1 of Protocol No. 1 (P1-1) provides that "every natural

or legal person is entitled to the peaceful enjoyment of his

possessions".

37. The applicant submits that his rights as a tenant were "property

rights" within the meaning of Article 1 of Protocol No. 1 (P1-1).

38. The Government argue that tenancy agreements do not give rise to

rights under Article 1 of Protocol No. 1 (P1-1).

39. The Commission considers that, having found a violation of

Article 14 taken in conjunction with Article 8 (Art. 14+8) of the

Convention, it is not necessary also to examine whether there has been

a violation of Article 14 taken in conjunction with Article 1 of

Protocol No. 1 (Art. 14+P1-1).

CONCLUSION

40. The Commission concludes, unanimously, that in the present case

it is not necessary to examine whether there has been a violation of

Article 14 taken in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1).

E. Recapitulation

41. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 14 of the Convention taken in

conjunction with Article 8 (Art. 14+8) thereof (para. 35 above)

42. The Commission concludes, unanimously, that in the present case

it is not necessary to examine whether there has been a violation of

Article 14 taken in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1) (para. 40 above).

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

Menu

LARKOS v. CYPRUS

LARKOS v. CYPRUS

LEXI