THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47293/99 by Kemal SELIM against Cyprus

The European Court of Human Rights ( Third Section) , sitting on 18 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dolle , Section Registrar ,

Having regard to the above application introduced on 30 March 1999 and registered on 8 April 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, is a Cypriot national of Turkish origin, born in 1967 and living in Nicosia. He is represented before the Court by Mr S. Drakos, a lawyer practising in Nicosia.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 8 January 1999 the applicant, through his lawyer, sent a letter to the Municipality of Nicosia informing it that he wished to contract a civil marriage with a Romanian citizen, Ms Ion Ramona, and inviting it to fix the procedure, time and venue for the celebration.

By letter of 28 January 1999 the Municipality of Nicosia informed the applicant that Section 34 of the Marriage Law did not provide the possibility for a Turkish Cypriot and a Muslim to contract a civil marriage.

The applicant was thus forced to marry in Romania without any of his family or friends being able to attend. On 14 February 1999, on his return to Cyprus with his wife, at Larnaca International Airport, the immigration authorities refused entry to his wife unless the applicant paid 300 Cypriot pounds in order to cover, if need be, the cost of her repatriation to Romania. The applicant paid that sum and his wife now lives with him in Cyprus. On 31 March 2000 the applicant’s wife applied to the Cyprus Immigration authorities and was granted the status of a resident alien, as she had resided under the same roof with the applicant as his wife for one year from the date of celebration of their marriage. The sum of 300 Cyprus pounds was returned to the applicant.

B. Relevant domestic law and practice

1. The Constitution

The relevant Articles of the Cypriot Constitution read as follows:

Article 22

“1. Any person reaching nubile age is free to marry and to found a family according to the law relating to marriage, applicable to such person under the provisions of this Constitution.

2. The provisions of paragraph 1 of this Article shall, in the following cases, be applied as follows:

(a) if the law relating to marriage applicable to the parties as provided under Article 111 is not the same, the parties may elect to have their marriage governed by the law applicable to either of them under such Article;

(b) if the provisions of Article 111 are not applicable to any of the parties to the marriage and neither of such parties is a member of the Turkish Community, the marriage shall be governed by a law of the Republic which the House of Representatives shall make and which shall not contain any restrictions other than those relating to age, health, the proximity of the relationship and the prohibition on polygamy;

(c) if the provisions of Article 111 are applicable to only one of the parties to the marriage and the other party is not a member of the Turkish Community, the marriage shall be governed by the law of the Republic as in sub-paragraph (b) of this paragraph provided:

... that the parties may elect to have their marriage governed by the law applicable, under Article 111, to one of such parties in so far as such law allows such a marriage.

3. Nothing in this Article contained shall, in any way, affect the rights, other than those on marriage, of the Greek-Orthodox Church or of any religious group to which the provisions of paragraph 3 of Article 2 shall apply with regard to their respective members as provided for in this Constitution.”

Article 28 § 2

“Every person shall enjoy all the rights and liberties provided for in the Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.”

Article 35

“The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this Part.”

Article 61

“The legislative power of the Republic shall be exercised by the House of Representatives in all matters except those expressly reserved to the Communal Chambers under this Constitution.”

Article 86

“The Greek and the Turkish Communities respectively shall elect from amongst their own members a Communal chamber which shall have the competence expressly reserved for it under the provisions of this Constitution.”

Article 87

“1. The Communal Chambers shall, in relation to their respective Community, have competence to exercise within the limits of this Constitution ... legislative power solely with regard to the following matters: ...

(c) personal status;  ...”

Article 111

“1. Subject to the provisions of this Constitution any matter relating to betrothal, marriage, divorce, nullity of marriage, judicial separation or restitution of conjugal rights or to family relations other than legitimisation by order of the court or adoption of members of the Greek-Orthodox Church or of a religious group to which the provisions of paragraph 3 of Article 2 shall apply shall, on and after the date of the coming into operation of this Constitution, be governed by the law of the Greek-Orthodox Church or of a Church of such religious group, as the case may be, and shall be cognisable by a tribunal of such Church and no Communal Chamber shall act inconsistently with the provisions of such a law. ...”

Article 146

“1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on an application made to it complaining that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.

2. Such a recourse may be made by a person who has any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, and which is adversely affected by such decision or act or omission. ...

5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.”

Article 188

“1. Subject to the provisions of this Constitution and to the following provisions of this Article, all laws in force on the date of the coming into operation of this Constitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution.

2. ... no provision in any such law which is contrary to, or inconsistent with, any provision of this Constitution and no law which under Article 78 requires a separate majority shall so continue to be in force ...

4. Any court in the Republic applying the provisions of any such law which continues in force under paragraph 1 of this Article, shall apply it in relation to any such period, with such modification as may be necessary to bring it into accord with the provisions of this Constitution ...”

2. Relevant case-law

In the case of Kathleen Andre Hadjipanayi v. The Municipal Council of Nicosia (1974) 3 C.L.R. 366, the Supreme Court explained the test which it applies for determining whether a decision or act of the Administration challenged under Article 146 of the Constitution is executory in nature. The Supreme Court held:

“An executory act ... is an act which, by virtue of the expressed will of the administrative authority, aims at producing legal effects with regard to those concerned and which entails its immediate enforcement through administrative channels. The main element of an administrative act is the production of legal effect, consisting in the creation, modification or abolition of a legal situation, i.e. rights and liabilities of administrative character of those governed ....

Acts of an administrative authority which are only of an informative nature are not executory. Moreover, a mere expression of intention of the Administration – as distinguished from an expression of its will – does not amount to an executory act.”

In that case the Supreme Court held that a publication in a newspaper of a decision of the Nicosia Municipal Council to prohibit the circulation of motor vehicles in a street of Nicosia was informative in nature because it expressed only the intention of the Municipal Council to take such a decision.

On the other hand, in the case of Evangelia Kyriakides v. the municipality of Nicosia (1976) 3 C.L.R. 183, the Supreme Court held that a letter of the municipality to the applicant making the grant of a building permit subject to the compliance with certain conditions was an expression of will of the authority (and not an expression of its intention) and thus amenable to recourse.

3. The Marriage Law

Section 16 of the Marriage Law provides:

“The marriage of any person may be celebrated in the Republic of Cyprus by any Registered Minister according to the rites and ceremonies of marriage observed by the Church, denomination or body to which such Minister belongs or by any marriage officer at his office”.

Section 34 of the Marriage Law provides:

“The provisions of this Law shall not apply to any marriage in which either of the parties is a Turk professing the Moslem faith.”

The Government submit that Article 2(1) of the Constitution, in conjunction with Article 111 (as amended by Law 95/89), provide that every matter relating to the marriage of citizens of the Republic belonging to the Greek community and to the Greek-Orthodox Church is governed by the ecclesiastical law of that Church. In order to enable members of the Greek community to exercise their right to celebrate a civil marriage, which was constitutionally granted to them for the first time in 1989, the Civil Marriage Law 1990 (Law 21/90) was enacted. This Law governs the celebration of civil marriages where both parties are members of the Greek community by Mayors and members of Municipal Councils.

As there was no constitutional provision in the Constitution specifying any particular law for the marriage of members of the Turkish community, as in the case of Article 111 regarding members of the Greek community, a law on such matters was left by the Constitution to be enacted by the Communal Chamber, to be elected by the Turkish community under Article 86, and the exercise of the legislative power afforded to it under Article 87(1)(c) with regard to matters of “personal status”.

Marriage in cases in which one of the parties is a Turk resident in Cyprus and professing the Muslim faith falls within the ambit of the Turkish Family (Marriage and Divorce) Law, Cap. 339. This law was in force on the date of entry into operation of the Constitution and it permitted civil marriages by a Marriage Officer who was a judge of a Turkish Family Court. This Law also provided that a marriage in such cases was not valid and effective unless solemnised by a Marriage Officer under the Law. A subsequent religious ceremony was not permissible unless and until a marriage certificate had been produced to that effect. The Marriage Law, by excepting from its application marriages between parties one of whom was a Turk professing the Muslim faith, was therefore in accordance with the Turkish Family Law, which afforded the right of civil marriage in such cases under its own provisions.

COMPLAINTS

1. The applicant complains under Articles 8 and 12 of the Convention that he was deprived of his right to marry and found a family, as there is no law governing the right of Turkish Cypriots to marry or any alternative legislation to that effect.

2. The applicant alleges that he has been a victim of unjustified discrimination because of his language, religion and national origin, contrary to Article 14 of the Convention.

3. The applicant also alleges a violation of Article 13 of the Convention because there existed no effective remedy in respect of his claims under the above-mentioned Convention provisions.

THE LAW

1. The applicant submits that the impossibility for him to contract a civil marriage in Cyprus and found a family, as a result of the provisions of section 34 of the Civil Marriage Law, violates the right to marry as guaranteed by Article 12 of the Convention, taken alone and in conjunction with Article 14 of the Convention, and of Article 8 of the Convention, which provide as follows:

Article 12

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

Article 14

“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.”

Article 8

“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.”

The Government contend that the applicant has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. The applicant should have filed a recourse before the Supreme Court on the basis of Article 146 of the Constitution, challenging the validity and legality of the decision of the Municipal Council of 28 January 1999, which rejected his request for the celebration in Cyprus of the proposed civil marriage. The applicant could have alleged before the Supreme Court that the said decision was based on provisions which were contrary to Articles 22 and 28 of the Constitution and the corresponding Articles 12 and 14 of the Convention. Had the applicant succeeded, the said decision would have been declared null and void and of no effect whatsoever, and the applicant would have been entitled to introduce an action for damages. Moreover, by virtue of Article 146 § 5, the judgment of the Supreme Court would be “binding on all courts and organs or authorities of the Republic” and would be “given effect to and acted upon by the organ or authority or person concerned”. The Government further submit that the letter of the Nicosia Municipality to the applicant was executory in nature and liable to challenge under Article 146. The essence of this letter was that the applicant’s request was turned down on the basis of section 34; it did not merely inform the applicant about his rights or express the intention to turn down the request.

The Government recall that the provisions of section 34 of the Marriage Law were in force on the date of entry into operation of the Constitution and continued to be in force by virtue of the express provision to this effect under Article 188 § 1 thereof. By virtue of this Article, laws like the Marriage Law, which continued in force after the date of entry into operation of the Constitution, must be construed and applied from the said date with such modification as may be necessary to bring them into conformity with the Constitution. Provisions in such laws which are contrary to any provisions of the Constitution shall not, according to Article 188 § 2, continue to be in force. Furthermore, the necessary modifications for bringing such laws into conformity with the Constitution include “amendment, adaptation and repeal thereof” and, in applying the provisions of any such law, courts must apply them with such modification as may be necessary to bring them into accord with the Constitution. The Supreme Court has already held that the presumption of constitutionality of statutes which applies to legislation enacted after the date of operation of the Constitution, is not applicable to legislation which pre-dated the Constitution. Had the applicant challenged the constitutionality of the provisions of section 34 vis-à-vis Articles 22 and 28 of the Constitution, the Supreme Court would have been duty bound to secure the efficient application of these Articles in the applicant’s case. Even if the Turkish Communal Chamber had continued to exist, the power of the Supreme Court under Article 188 would have been unaffected.

According to the Government, as the Marriage Law was a law which continued in force and applied to the civil marriage of any person, it was open to the Supreme Court to hold that section 34 thereof, preventing the celebration of the civil marriage of persons of Turkish origin professing the Muslim faith and who belonged to the Turkish community, should not continue in force. In the context of a recourse under Article 146, the Supreme Court could have proceeded in the exercise of the function afforded to it by Article 188 § 4 to amend, adapt or repeal the provisions of this Law. Moreover, it was open to the applicant to argue before the Supreme Court that, in construing the Marriage Law, it should take into consideration that existing legislative arrangements under Law 339 for the celebration of the civil marriage of “Turks resident in Cyprus professing the Muslim faith” continued in force subject to judicial pronouncement as to their conformity with the Constitution and were unavailable due to the abnormal situation prevailing on the island.

The Government submit that where a question of conformity with the Constitution arises and where the question concerns in substance a violation of one of the rights safeguarded by the Convention, it is incumbent upon the applicant to seek national redress before making an application to the Court. Domestic remedies will only have been exhausted when the Constitutional Court has rejected the request or given its opinion.

The Government accept that legal aid is not available in Cyprus in respect of proceedings under Article 146 of the Constitution, but stress that such cost are not high (between 700 and 800 Cypriot pounds). Finally, the Government maintain that although procedures for expediting constitutional proceedings do not exist in Cyprus (which normally take between twelve and eighteen months), such proceedings can be concluded speedily if the applicant requests an oral hearing instead of filing written addresses or if he asks the Court to shorten the time-limits for filing opposition and written addresses.

The applicant maintains that exhaustion of domestic remedies was not possible in the present case. The marriage of the applicant fell within the ambit of Article 87 of the Constitution. The Republic had a duty to regulate the personal status of the Moslem Turkish Cypriots living in the area controlled by the Republic since 1963. The real question which arises in the present case is not whether section 34 of the Marriage Law is unconstitutional but the failure by the Republic to legislate in this field or appoint judges to the Turkish Family Courts who could exercise the powers vested in them under the Turkish Family law.

No law has been enacted by the Turkish Communal Chamber since “the Independence”, and the law applicable to the applicant’s case is only the Turkish Family law which could not secure to the applicant his right to marry as guaranteed by the Convention.

The Supreme Court has no jurisdiction to determine matters of personal status and the Republic should have made the relevant appointments under the existing law of the Turkish Communal Courts and filled the seats with Greek-Cypriot judges. When the Turkish-Cypriot officials withdrew from the established constitutional organs and authorities as a result of necessity, the recognised government and parliament should have passed a unifying Act which should have protected the right of all citizens to freedom of marriage. The Republic upholds the personal status of the Greek-Cypriot Community but not that of the Turkish-Cypriots who did not agree with their Community’s illegal withdrawal from the Government.

The applicant concedes that the relevant Cypriot legislation is very confused. However, he states that according to Article 146 of the Constitution, it is the Supreme Constitutional Court that would have exclusive jurisdiction to adjudicate finally on such complaints and not the existing Supreme Court that was established illegally and without any necessity. The Government could have filled the seats of the Constitutional Court but should not have abolished it.

The applicant submits that the letter of the municipality of Nicosia was not a “decision, act or omission of any organ, authority or person, exercising any executive or administrative authority” for the purposes of Article 146. The argument of the Government, that if the applicant had applied to the Supreme Court, he would have good chances of succeeding, is not valid as the Municipality would have suggested that section 34 was in line with the Constitution. In the recent case of Ibrahim Aziz v. The Republic of Cyprus (judgment of 23 May 2001) the Supreme Court refused to safeguard the right of a Turkish Cypriot to vote in the parliamentary elections and dismissed the application without giving any reasons. Accordingly, a constitutional challenge to Section 34 had no prospect of success, especially having regard to the fact that Articles 22, 28 and 188 are not in the List of Basic Articles of the Constitution, while Articles 61 and 87 are.

Finally, the applicant claims that he was not in a financial position to support proceedings under Article 146. He affirms that if the application of any litigant is dismissed by the Supreme Court, the litigant has to pay 1,000 Cypriot pounds to the Government for costs. Such a practice aims at discouraging plaintiffs from pursuing legal proceedings.

The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford the Contracting states the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among other authorities, the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996 ‑ II, § 33).

The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requirements of accessibility and effectiveness; and it falls to the respondent State, if it pleads non-exhaustion, to establish that these various conditions are satisfied (Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, § 45 ).

In the present case, the Court notes that the Convention is incorporated into the domestic law of Cyprus. The Court further notes that the Supreme Constitutional Court of Cyprus has ceased to exist and that the Law which abolished it and merged its powers and functions with those of the Supreme Court of Cyprus has been declared constitutional (The Attorney General v. Ibrahim (1964, CLR 195)). By Article 146 of the Cypriot Constitution the Supreme Court is granted exclusive jurisdiction to adjudicate finally on applications made to it complaining ( inter alia ) that a decision, act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law or is made in excess or in abuse of powers vested in such organ, authority or person.

The Government argue that the letter of the Municipality of Nicosia, informing the applicant that, by virtue of the provisions of section 34 of the Marriage Law, it was not possible to celebrate a civil marriage between parties one of whom was a Turk professing the Muslim faith, amounted to a decision the validity of which could have been challenged before the Supreme Court on the grounds that the decision relied on a statutory provision which was contrary to Articles 22 and 28 of the Constitution and/or the corresponding Articles 12 and 14 of the Convention.

The first question raised is whether the Municipality’s letter is properly to be regarded as "a decision, act or omission of any organ, authority or person, exercising any executive or administrative authority" within the meaning of Article 146 of the Constitution.

The Government accept that only decisions or acts which are "executory" in nature are open to challenge under Article 146.  They argue, relying on the case-law of the Supreme Court, that the Municipality’s letter amounted to an executory act for this purpose, since it did not merely inform the applicant of his rights or express an intention to turn down his request to celebrate a civil marriage; it actually turned down that request "thereby directly affecting the legal situation of the applicant vis-à-vis his constitutional right to celebrate marriage in Cyprus".

Having examined the terms of the Municipality’s letter in the light of the case-law cited by the Government, the Court is not satisfied that the letter can be regarded as an executory decision for the purposes of Article 146. While the Municipality is clearly an organ or authority exercising an executive or administrative authority, in the Court’s view the letter was essentially informative in nature, notifying the applicant, as it did, that section 34 of the Marriage Law did not allow for the possibility of a civil marriage between parties one of whom was a Turk professing the Muslim faith: the letter did not, and did not purport to, bring about a legal result or create, modify or otherwise affect the rights and liabilities of the applicant, which were exclusively governed by the provisions of the Marriage Law to which the letter drew attention.

Further, even assuming that the Municipality’s letter was open to challenge under Article 146 of the Constitution, the question remains whether the Government have shown with sufficient certainty that such a challenge would have stood any prospects of success.

The Court observes that Article 22 of the Constitution provides that any person of marriageable age is free to marry and found a family “according to the law relating to marriage applicable to such person under the provisions of this Constitution”. It is common ground that “the law” governing marriage in cases in which one of the parties is a Turk resident in Cyprus and professing the Muslim faith is the Turkish Family (Marriage and Divorce) Law, Cap. 339, which was in force on the date of entry into operation of the Constitution and originally permitted civil marriages by a Marriage Officer who was a judge of a Turkish Family Court. This Law was subsequently amended by the Turkish Communal Chamber acting pursuant to Article 87 of the Constitution whereby Turkish Family Courts were replaced by Turkish Communal Courts. It is further common ground that, by excepting from the application of its provisions marriages between parties one of whom was a Turk professing the Muslim faith, section 34 of the Marriage Law accorded both with Cap. 339 and with the provisions of Article 87 of the Constitution itself, which conferred on the Communal Chamber of the Turkish Community exclusive legislative power with regard to the “personal status” of members of that Community.

Owing to the abnormal situation prevailing on the Island, there were and are no Turkish Communal Courts operating in the Government-controlled part of the Republic, whose judges can act as Marriage Officers for the purposes of Cap. 339. The Government contend that in these exceptional circumstances it would have been “open to the applicant to argue” before the Supreme Court that the provisions of section 34 of the Marriage Law were contrary to and/or inconsistent with Articles 22 and 28 of the Constitution and did not continue in force. It is further argued that it would have been open to the Supreme Court to hold that the provisions of section 34 did not continue in force, without thereby interfering with the exercise of legislative powers afforded to the Turkish Communal Chamber.

The Court observes that the Government have cited no authority in which in circumstances comparable to those in the present case a statutory provision was held to be unconstitutional and of no continuing effect. In particular, the Court has been referred to no case-law to suggest that the Supreme Court would hold to be inconsistent with the Constitution a provision which respected and accorded with specific constitutional arrangements governing the marriage of members of the Turkish Community professing the Muslim faith.

Indeed, the recent decision in the case of Ibrahim Aziz v. the Republic of Cyprus, cited by the applicant, would appear to support the contrary conclusion. The Supreme Court in that case held that Article 63 of the Cypriot Constitution and Article 5 of Law No. 72/79 (relating to the election of Members of Parliament) did not provide for members of the Turkish Community living in the Government-controlled part of Cyprus to vote in the Parliamentary elections and that the Supreme Court could not intervene to fill a legislative gap in this respect.

In these circumstances, the Court finds that the Government have not shown with a sufficient degree of certainty the existence of an available and effective remedy. It follows that the Government’s preliminary objection must be dismissed.

As regards the substance of the complaint, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Finally, the applicant further alleges a violation of Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits.

S. Dollé J.-P. Costa Registrar President