Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24463/94

by Alfred John Terence PENTON

against Turkey

The European Commission of Human Rights sitting in private on

14 April 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 March 1994 by

Alfred John Terence PENTON against Turkey and registered on

23 June 1994 under file No. 24463/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 20 May 1997 to communicate the

application;

- the observations submitted by the respondent Government on

24 November 1997 and the observations in reply submitted by the

applicant on 12 January 1998.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1926. He is retired

and resides in Burbage, Leicestershire.

The facts of the case, as they have been submitted by the

parties, can be summarised as follows:

In 1970 W.L. Randall Ltd, a company owned by the applicant and

another British citizen, and Mr. P.G.N., a Greek Cypriot, founded

Hosiery Mills Ltd, a company incorporated under Cypriot law. Mr. P.G.N.

owned 51% of the shares and W.L. Randall Ltd 49%. Sometime in 1971 the

applicant became the exclusive owner of W.L. Randall Ltd. Hosiery Mills

Ltd used to manufacture goods in a factory in Famagusta.

In 1974, when the Turkish army entered Famagusta, the applicant

and his partner lost possession of the factory, together with plant

machinery and stock which belonged to their company.

The applicant applied to the authorities of the "Cyprus Turkish

Federal State" for registration of Hosiery Mills Ltd. On

27 February 1975 the authorities of the "Cyprus Turkish Federal State"

requested the applicant to submit a number of documents. On

4 April 1977 the applicant informed these authorities that he had sent

them the documents they had requested by registered mail and that he

was surprised to hear that they had not received them.

On 4 December 1991 the Foreign and Commonwealth Office informed

a Member of Parliament making enquiries on behalf of the applicant that

most commercial claims for moveable property in the northern part of

Cyprus had been settled with the exception of claims from "persons or

companies with Greek, Greek Cypriot or Armenian connections, and those

from companies which have failed to register with the Turkish Cypriot

Register of Companies".

On 6 November 1992 the Foreign and Commonwealth Office informed

the applicant that "it does appear likely ... that the Turkish

authorities did ... receive in 1977 the documents they are now

insisting were never presented to them. Indeed, there is evidence on

the file that a duplicate set of these documents was handed by the High

Commission on 29 November 1977 to M.H., of the Office of the Deputy

Prime Minister and Ministry of Defence." According to the Foreign

Office, "the real problem is the company's Greek or Greek Cypriot

connections and all the rest of the obstacles put in the way of

progress are just so many red-herrings".

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that

he has been deprived of his possessions without compensation.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 March 1994 and registered

on 23 June 1994.

On 20 May 1997 the Commission decided to communicate the

application.

The Government's written observations were submitted on

24 November 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 12 January 1998.

THE LAW

The applicant complains under Article 1 of Protocol No. 1

(P1-1) that he has been deprived of his possessions without

compensation.

Article 25 para. 1 (Art. 25-1) of the Convention provides as

follows:

"The Commission may receive petitions ... from any person, non-

governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention."

The respondent Government submit that the applicant cannot claim

to be a victim within the meaning of the above provision, since the

property in question belonged to Hosiery Mills Ltd, a legal person

distinct from the applicant.

The applicant claims that he can claim to be a victim because he

is a shareholder and director of Hosiery Mills Ltd as well as a person

working for that company.

The Commission recalls that the term victim in Article 25

(Art. 25) of the Convention denotes the person directly affected by the

act or omission which is in issue (Eur. Court HR, Eckle v. Germany

judgment of 15 July 1982, Series A no. 51, p. 30, para. 66). The

Commission has accepted that persons with a substantial majority

shareholding in a company can, under certain circumstances, claim to

be victims of measures directed against the property of the company

(Kaplan v. the United Kingdom, Comm. Report 17.7.80, para. 131, D.R.

21, p. 23). However, minority shareholders cannot in principle claim

to be victims of such measures (No. 9266/81, Dec. 28.1.83, D.R. 30, p.

155). Piercing the corporate veil can be justified only in exceptional

circumstances (Eur. Court HR, Agrotexim and others v. Greece judgment

of 24 October 1995, Series A no. 330, p. 25, para. 66).

The Commission notes that the applicant is the sole shareholder

of W.L. Randall Ltd. However, that company is not the majority

shareholder of Hosiery Mills Ltd against the property of which the

measures complained of have allegedly been directed. Neither does the

applicant appear to have taken any steps towards having the application

introduced by Hosiery Mills Ltd itself. The Commission does not ignore

the political realities of the situation in Cyprus and could envisage

the existence of special circumstances which might have precluded the

majority shareholder of Hosiery Mills Ltd, a Greek Cypriot, from

cooperating in the taking of all the necessary steps for lodging such

an application. However, the applicant does not invoke the existence

of any such circumstances.

It follows that the applicant cannot claim to be a victim of the

violation complained of. The Commission, therefore, considers that the

application is incompatible ratione personae and that it must be

rejected as incompatible with the provisions of the Convention under

Article 27 para. 2 (Art. 27-2) thereof.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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PENTON v. TURKEY

PENTON v. TURKEY

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