Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12822/87

by Andrew G. KAPAS

against the United Kingdom

The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER 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 3 February 1987

by Andrew George Kapas against the United Kingdom and registered

on 24 March 1987 under file N° 12822/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, submitted by the applicant, may be

summarised as follows:

The applicant, Mr. A. G. Kapas, is a British citizen who was

born in Cyprus in 1920. He resides in the United Kingdom.

In 1971 he left the United Kingdom with his family and took up

residence in Cyprus. There he owned a considerable amount of real

and personal property including a luxury house and substantial farming

land and equipment.

In 1974 Turkey invaded Cyprus and occupied about 40% of the

island including the applicant's land. The Turkish authorities allegedly

expropriated all of the applicant's real and personal property. In

1974 the applicant made a claim to the British High Commission in

Nicosia which transmitted it to the Turkish Cypriot Claims

Commission. The Claims Commission has declined to process his claim

because the applicant has Greek or Greek Cypriot connections.

The applicant sought legal aid to bring an action against the

United Kingdom but was refused it. Nevertheless on 28 June 1985 he

commenced an action in the Queen's Bench Division of the High Court of

Justice of England, seeking a declaration that the British Government

honour its obligations under the Treaty of Guarantee entered into in

1960 by the Republic of Cyprus on the one part and Greece, the United

Kingdom and Turkey on the other part. He claimed that the United

Kingdom in order to fulfil its obligations under the Treaty should

take legal action against Turkey for the return of his property and

for fair compensation for his lost property, his loss of earnings and

for hardship endured as a result of those losses, and in the

alternative that the United Kingdom should compensate him for such

losses.

The Treaty of Guarantee of 16 August 1960 provides that in

return for the Republic of Cyprus undertaking not to participate in

any political or economic union with any other State and not to agree

to any partition of the island, the United Kingdom, Greece and Turkey

undertook to recognise and guarantee the independence, territorial

integrity and security of the Republic of Cyprus and, in the case of

breach of any provisions of the Treaty "to consult together with a

view to making representations, or taking the necessary steps to

ensure observance of those provisions". The United Kingdom then made a

declaration that, having examined the documents concerning the

establishment of the Republic of Cyprus, including the Treaty of

Guarantee, it accepted those documents as the agreed formulation for

the final settlement of the "problem of Cyprus". It further declared

that it was prepared to transfer sovereignty over the island to the

Republic of Cyprus subject to certain conditions including that

"provision shall be made, by agreement, for the protection of the

fundamental human rights of the various communities in Cyprus". The

Constitution of Cyprus, in Part II, contains a Bill of Rights which

includes in its Art. 23 a right to own property. A regime of

enforcement of this and other constitutional rights is also provided.

On 16 December 1985 the Attorney-General obtained an order

from a Master of the High Court to have the applicant's statement of

claim struck out as not disclosing any cause of action. The Master

held that the courts "could not control the use of prerogative in

relation to treaty-making powers and the consequences of treaties".

The applicant appealed against that order to the Queen's Bench

Division of the High Court of Justice.

His appeal is still pending.

He again applied for legal aid to the Law Society. The

General Committee of the Law Society refused legal aid on the ground

that there was no cause of action in the proceedings he intended to

take. The applicant appealed to the Area Committee of the Law Society

which, on 21 April 1986, upheld the General Committee's decision.

COMPLAINTS

The applicant makes the following complaints:

1. that the United Kingdom Government, as obliged by the

Treaty of Guarantee 1960, failed to protect his human rights

and, in particular, his property rights contrary to

Article 1 of Protocol No. 1;

2. that the denial of legal aid deprived him of a fair hearing of

his civil claim, contrary to Article 6 para. 1 of the Convention;

3. that the Master of the Court who struck out his claim was

biased so that he was denied a fair hearing of his civil

claim contrary to Article 6 para. 1 of the Convention;

4. that, because the Master of the Court struck out his

statement of claim, he was denied an effective remedy

contrary to Article 13 of the Convention.

THE LAW

1. The applicant has complained under Article No. 1 of Protocol

No. 1 (P1-1) that the United Kingdom has failed to perform its international

obligations under the Treaty of Guarantee of 1960 and the associated

declaration to protect the fundamental rights of the various

communities in Cyprus and, in particular, his property rights.

Article 1 of Protocol No. 1 (P1-1) states that

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. ..."

The Commission notes that there has been no direct

interference with the applicant's possessions by the United Kingdom

authorities. The alleged expropriation of his property in Cyprus is

attributed to Turkey and therefore in itself is not a matter for which

the United Kingdom Government is responsible under the Convention. The

applicant maintains however that the United Kingdom is obliged to take

measures against Turkey to protect his property rights.

The Commission recalls that it has previously held that "no

right to diplomatic protection or other measures by a High Contracting

Party on behalf of persons within its jurisdiction is as such

guaranteed by the Convention" (Bertrand Russell Peace Foundation

Limited v. United Kingdom No. 7597/76, Dec. 2.5.78, D.R. 14 p. 117 at

123, 124). The Commission also held that there was no such right

which could be inferred from Article 1 (Art. 1) of the Convention (ibid.).

In the present case the Commission notes that there is no

indication that the Treaty of Guarantee 1960 and the Declaration of

the United Kingdom relied on by the applicant extend the jurisdiction

of the United Kingdom for purposes of Article 1 (Art. 1) of the Convention or

create an individual right vis-à-vis the United Kingdom which can be

enforced in proceedings before the Commission. Furthermore, the

Commission recalls, even assuming that he has exhausted domestic

remedies, that there is no right in the Convention which requires a

High Contracting Party to espouse the applicant's complaint under

international law or intervene with the Turkish authorities on his

behalf. This complaint must therefore be rejected as incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains that the denial of legal

aid deprived him of a fair hearing of his civil claim contrary to

Article 6 para. 1 (Art. 6-1) of the Convention which provides inter alia

as follows:

"In the determination of his civil rights and

obligations ... everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law. ..."

The Commission does not find it necessary to determine

whether the applicant's claim in the United Kingdom proceedings may be

described as a "civil right". Even assuming that the proceedings

concern such a right, the Commission finds that the complaint under

Article 6 (Art. 6) is inadmissible for the following reasons.

The Commission recalls that the European Court of Human Rights

held in the Airey Case that Article 6 para. 1 (Art. 6-1) of the Convention does

not require a High Contracting Party to provide free legal aid for

every dispute relating to a civil right (Eur. Court H.R., Airey

Judgment of 9 October 1979, Series A no. 32 para. 26). This point has

been further elaborated by the Commission in X v. United Kingdom (No.

8158/78, Dec. 10.8.80, D.R. 21 p. 95 at 101) in the following terms:

"Article 6 (1) (Art. 6-1) does not require that legal aid be

provided in every case, irrespective of the nature of the

claim and supporting evidence. Where an individual is

refused legal aid in a particular case because his proposed

civil claim is not sufficiently well grounded or is regarded

as frivolous or vexatious the burden would then fall on him

to secure his access to court in some other way such as,

for example, bringing the action himself or seeking

assistance from some other source. Accordingly the

Commission is of the opinion that where a prisoner has been

refused legal aid on the basis that his claim lacks

reasonable prospects of success such a situation would not

normally constitute a denial of access to court unless it

could be shown that the decision of the administrative

authority was arbitrary."

In the present case the legal aid authority has rejected the

application for legal aid on the basis that his case did not disclose

a cause of action. There is no indication from the case file that

this decision is, in any sense, arbitrary. Moreover, the Commission

observes that the absence of legal aid in the applicant's case has not

prevented him from opposing the application to the Master of the High

Court to strike out his statement of claim or from lodging an appeal

against his decision.

It follows that the above complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant has further complained that the Master of

the Queen's Bench Division who struck out his claim was biased against

him, in breach of his right to a fair hearing guaranteed by Article 6

para. 1 (Art. 6-1) of the Convention. However, the applicant has lodged an

appeal against the Master's decision which is apparently still pending

before the High Court. It follows that the applicant has not complied

with the condition as to the exhaustion of domestic remedies and this

part of the application must therefore be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

4. Finally the applicant complains that, because his statement of

claim was struck out by the Master, he was denied an effective remedy

contrary to Article 13 (Art. 13) of the Convention.

However the Commission finds that no separate issue arises

under this provision since it has already examined the applicant's

complaints under Article 6 para. 1 (Art. 6-1) of the Commission whose more

rigorous procedural guarantees take precedence over the more general

and less strict requirements of Article 13 (Art. 13) (see No. 9276/81, Dec.

17.11.83, D.R. 35 p. 13 at p. 21).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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KAPAS v. THE UNITED KINGDOM

KAPAS v. THE UNITED KINGDOM

LEXI