AS TO THE ADMISSIBILITY OF

Application No. 41113/98

by PHOTOS PHOTIADES & CO LTD

against Cyprus

The European Commission of Human Rights (First Chamber) sitting in private on 21 October 1998, 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

I. BÉKÉS

G. RESS

A. PERENIČ

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 March 1998 by by PHOTOS PHOTIADES & CO LTD against Cyprus and registered on 5 May 1998 under file No. 41113/98;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant company was incorporated in Cyprus in around 1964. Its seat is in Nicosia. In the proceedings before the Commission it is represented by Mr C. Clerides , a lawyer practising in Nicosia.

The facts of the case, as they have been submitted by the applicant company, may be summarised as follows:

The applicant company owns two plots of land by the sea in Eastern Paphos (of a total surface of almost 200 domus ), which it had acquired for tourist development.

In 1981, by virtue of secondary legislation, this property was included in a tourist development zone.

On 7 August 1989 the applicant company applied for a permit to construct 160 houses which would have formed part of a larger development.

On 11 August 1989, by virtue of decree No. 186/89, the property of the applicant company, together with other plots of land, was included in a "White Zone" in which no construction for development was allowed for twelve months.

On 4 November 1989 the applicant company's application of 7 August 1989 for a construction permit was rejected. The applicant company applied for judicial review of the relevant decision attacking the legality of decree No. 186/89.

By virtue of decrees Nos. 172/89 and 8/90, restrictions were placed on driving through the applicant company's property, the use of the beach and the anchorage of boats.

Decree No. 205/90 extended in time the restrictions imposed by decree No. 186/89.

On 1 December 1990 the Law on Town Planning entered into force by virtue of decree No. 292/90. On the same date a declaration of policy was published under Article 34A of this law. According to the declaration, the applicant company's property  was included in a special protection zone entitled "Shores and Areas for the Protection of Nature" in which no development is allowed. The only exceptions are, first, works which would assist in the preservation of the special characteristics of the area, secondly, traditional works such as agriculture and forestry, thirdly, the creation of "nature paths" or other access routes and of small projects that will enable the public to study and acquaint itself with nature, fourthly, the construction of appropriate "tourist pavilions" in the less sensitive parts of the area, and fifthly, necessary works of infrastructure by the State. In any event, the buildings could cover only 0.5% of the surface.   

The applicant company, using a remedy provided for under the Law on Town Planning, lodged an objection against the declaration. When its objection was rejected the applicant company applied for judicial review.

On 13 March 1996 the Supreme Court rejected the applicant company's recourse concerning the refusal to grant it a building permit and decree No. 186/89. The court found that, although the restrictions on the use of land included in a "White Zone" were rather drastic, they did not amount to deprivation of property. The applicant company remained the owner of this property and could use it in accordance with the law.

On 10 September 1997 a judge of the Supreme Court rejected the applicant company's recourse concerning the policy declaration of 1 December 1990. The judge noted that the applicant company's property was on the Toxeftra coast which was one of the main places where the green turtle - a protected species - laid its eggs. It was also adjacent to the Avaka and Farkona gorges which were of great environmental and ecological importance. Furthermore, the judge referred to the decision issued by the Supreme Court in the applicant company's previous recourse. The judge considered that the restrictions imposed by the policy declaration on the use of land were analogous to those imposed by the decree on the "White Zones" and that he had nothing to add to the reasoning of the Supreme Court in its decision of 13 March 1996. If the applicant company wished to apply for compensation in respect of the diminution in the value of its land, it could do so by virtue of Article 68 of the law. It followed that the judicial review application had to be refused.  

The applicant company did not appeal against this decision to the full Supreme Court considering that it had no prospects of success given the court's prior decision of 13 March 1996.

COMPLAINTS

1. The applicant company complains under Article 1 of Protocol No. 1 of a continuing violation of its right to property arising from the various legislative measures affecting it.

It claims that these measures are not in the public interest. In the applicant company's words, "no convincing evidence has been adduced or is available to substantiate the need for environmental protection" and "the necessary work was not done prior to the implementation of the measures by the authorities to establish objectively the need for the measures and to weigh this against the requirements of the protection of individual fundamental rights".

It also claims that the measures are disproportionate since, inter alia , they affect the entire property the surface of which is 200 domus . Moreover, no fair balance has been struck between the general interest and the right of the applicant company. No compensation was ever offered. Even if the applicant company had applied for compensation under Article 68 of the law, such compensation would not have been adequate since it would not have been made "on the basis of deprivation of the land but only for very limited purposes".

2. The applicant company also complains under Article 14 of the Convention that nearby property belonging to the Orthodox Church and the former President of the Republic Mr G. Vasiliou was specifically excluded from the measures complained of.

THE LAW

1. The applicant company complains under Article 1 of Protocol No. 1 of a series of measures affecting its property.

The Commission recalls that, according to Article 26 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

The Commission notes that the applicant company's recourse concerning decree No. 186/89 was rejected by the Supreme Court on 13 March 1996, i.e. more than six months before the introduction of the application. Moreover, even assuming that, given the outcome of the above-mentioned recourse, an application for judicial review of decree No. 205/90 would have had no prospects of success, the Commission notes that the application was evidently not introduced within six months from the promulgation of this decree. Finally, the Commission considers that these measures have not given rise to a "continuing situation", as this notion is understood in its case-law concerning Article 26 of the Convention.

It follows that, insofar as decrees Nos. 186/89 and 205/90 are concerned, the application was not introduced within the six-month time-limit of Article 26 of the Convention and must be rejected in accordance with its Article 27 para. 3. 

2. The Commission also notes that the applicant company has not applied for judicial review of decrees Nos. 172/89 and 8/90. It follows that it has not exhausted domestic remedies in this respect, as required under Article 26 of the Convention. As a result, this part of the application must be also rejected under Article 27 para. 3 of the Convention.

3. The Commission must then examine the applicant company complaints under Article 1 of Protocol No. 1 and Article 14 of the Convention concerning the declaration of policy of 1 December 1990.

Article 1 of Protocol No. 1 reads as follows:

"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."

Article 14 of the Convention reads 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."

Insofar as the applicant company alleges discrimination in the enjoyment of its property rights because the policy did not affect nearby plots of land belonging to the Orthodox Church and a former President of the Republic, the Commission has been unable to find any indication that this complaint was raised in the relevant recourse to the Supreme Court. It follows that the applicant company has not exhausted domestic remedies in this respect.

This part of the application must, therefore, be rejected in accordance with Article 27 para. 3 of the Convention.

4. Insofar as the applicant company complains that the interference with its property rights was not in the public interest, that it was disproportionate and that no fair balance was struck between the general interest and its rights, the Commission is prepared to assume that, given the outcome of the applicant company's previous recourse concerning decree No. 186/89, it was dispensed from appealing against the decision of 10 September 1997 by a single judge of the Supreme Court to the full court.

Moreover, the Commission recalls that Article 1 of Protocol No. 1, which guarantees in substance the right to property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for this purpose (Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 14, para. 41).

The Commission notes that the declaration of policy at issue was designed to control the applicant company's use of its possessions and left unaffected its powers to take formal decisions, within the boundaries of the law, concerning the fate of the two plots of land. However, at the heart of the applicant company's argumentation lies the claim that, given the serious restrictions that the policy declaration imposed on the use of land, it amounted to a de facto deprivation of property.

The Commission notes in this connection that the only meaningful exploitations allowed under the policy declaration appear to be agriculture, forestry and perhaps some form of ecological tourism. Moreover, the Commission notes that the Supreme Court has described the restrictions as "drastic". However, the Commission does not consider it necessary to determine under which of the three rules comprised in Article 1 of Protocol No. 1 the applicant company's complaint falls to be examined. Even assuming that the policy declaration amounted to a de facto deprivation of property, the Commission considers that no appearance of a violation is disclosed.

The Commission recalls in this connection that the national authorities enjoy a margin of appreciation in assessing whether a deprivation of property was in the public interest and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised , or in other words whether a fair balance was struck between the demands of general interest of the community and the requirements of the protection of the individual's fundamental rights (Eur. Court HR, James v. the United Kingdom judgment of 21 February 198 6, Series A no. 98, pp. 32, 34 and 36, paras. 46, 50, 52 and 54).

In the circumstances of the case, the Commission recalls that the Supreme Court was satisfied that both the applicant company's plots lay in their entirety within an area of great environmental and ecological importance. Moreover, the applicant company was entitled to compensation under Article 68 of the relevant legislation. Although the applicant company claims that the compensation would have been inadequate because it would not have been made "on the basis of deprivation of the land", the Commission notes that it did not institute any proceedings in this connection. As a result, the Commission is unable to determine this issue in the abstract, especially since, in the Convention organs' case-law, Article 1 of Protocol No. 1 does not guarantee a right to full compensation in all circumstances (see Eur. Court HR, James v. the United Kingdom judgment, op. cit., p. 36, para. 54).   

The Commission, therefore, considers that, given the national authorities' margin of appreciation, it has not been shown that the impugned measure was not in the public interest and that no reasonable balance was struck between the public interest and the need to protect individual rights.

Moreover, the Commission notes that it has not been alleged, nor does it transpire from the case-file, that the impugned measure was not in accordance with the law.

It follows that no appearance of a violation of Article 1 of Protocol No. 1 is disclosed. This part of the application is, therefore, manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.  

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO   M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber