Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29515/95

by Xenis LARKOS

against Cyprus

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

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 21 November 1995

by Xenis LARKOS against Cyprus and registered on 12 December 1995 under

file No. 29515/95;

Having regard to:

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

the Commission;

- the observations submitted by the respondent Government on

12 November 1996 and the observations in reply submitted by the

applicant on 7 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot citizen and a civil servant, born in

1936 and residing in Nicosia, Cyprus. In the proceedings before the

Commission he is represented by Mr. A. Demetriades, a lawyer practising

in Nicosia.

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

parties, can be summarized as follows.

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.

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premises was revoked.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.

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.

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

General dated 5 January 1989, the applicant reiterated his earlier

position.

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.

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.

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.

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 flat.

COMPLAINTS

1. The applicant complains that there has been a violation of

Article 14 of the Convention in conjunction with Article 1 of

Protocol No. 1 for the reasons invoked before the Supreme Court.

2. The applicant also complains of a violation of Article 14 of the

Convention in conjunction with Article 8 of the Convention, in that he

will be expelled from his home following a decision of the Supreme

Court which interpreted Law 23/83 in a discriminatory manner.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 November 1995 and registered

on 12 December 1995.

On 10 September 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

12 November 1996. The applicant replied on 7 February 1997, after an

extension of the time-limit fixed for this purpose.

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention and Article 1 of Protocol No. 1 taken in conjunction with

Article 14 (P1-1+14) of the Convention that, because he is a tenant of

the Government, he does not enjoy the protection which Law 23/83 gives

to persons placed in analogous situations, i.e. the Government or other

individuals when renting property from private owners.

The Commission recalls that the provisions invoked by the

applicant provide as follows:

Article 8 (Art. 8) of the Convention

"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."

Article 14 (Art. 14) of the Convention

"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 1 of Protocol No. 1 (P1-1)

"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."

The Government argue that the applicant failed to raise before

the Supreme Court a ground of discrimination that could substantiate

his case under Article 14 (Art. 14) of the Convention. Although the

applicant raised in substance the complaint that he was subjected to

discrimination in the enjoyment of his right to respect for his home,

he did not complain that, as a Government tenant, he enjoyed less

protection than tenants of private persons. At the hearing before the

Supreme Court, the applicant confined his arguments to the following

position: his rights as a tenant were "property" rights within the

meaning of Article 1 of Protocol No. 1 (P1-1) 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. In any event, the Government

argue that, even assuming that the applicant has exhausted domestic

remedies, his complaints are manifestly ill-founded. A tenancy

agreement does not give rise to rights under Article 1 of Protocol No.

1 (P1-1). Moreover, all the tenants of the Government are treated

equally and 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.

The applicant submits that at the hearing before the Supreme

Court he complained that he did not enjoy the rights he would have

enjoyed had his landlord been somebody else. As a result, he has raised

his complaints in substance. The Supreme Court did not advance any

reasons why he should enjoy less protection than tenants of private

owners. In any event, he is the only Government tenant facing eviction.

The Commission recalls that, according to its case-law, to

exhaust domestic remedies the person concerned must have raised before

the national authorities, at least in substance, the complaint he puts

before the Commission (No. 16810/90, Dec. 9.9.82, D.R. 73, p. 136).

The Commission notes that before the Supreme Court the applicant

complained of discrimination in the protection he enjoyed as a person

renting property which he used as his home. To substantiate his

complaint, he compared his situation, not only to that of the

Government when renting property from private owners but also to that

of other individuals renting property from private owners which they

used as their homes. As a result, the Commission considers that the

applicant has exhausted domestic remedies in accordance with Article 26

(Art. 26) of the Convention.

Moreover, the Commission, in the light of the parties' other

observations, considers that the application raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. The application cannot,

therefore, be regarded as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no

other ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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LARKOS v. CYPRUS

LARKOS v. CYPRUS

LEXI