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CHAKKAS AND OTHERS v. CYPRUS

Doc ref: 43331/09;27877/10;36144/11 • ECHR ID: 001-158865

Document date: October 20, 2015

  • Inbound citations: 3
  • Cited paragraphs: 3
  • Outbound citations: 6

CHAKKAS AND OTHERS v. CYPRUS

Doc ref: 43331/09;27877/10;36144/11 • ECHR ID: 001-158865

Document date: October 20, 2015

Cited paragraphs only

FOURTH SECTION

DECISION

Application nos. 43331/09, 27877/10 and 36144/11 Emmanuel CHAKKAS and others against Cyprus Nikoletta PETROU and others against Cyprus and Evangelia CHAKKAS against Cyprus (see list appended)

The European Court of Human Rights (Fourth Section), sitting on 20 October 2015 as a Chamber composed of:

Guido Raimondi, President, Päivi Hirvelä, George Nicolaou, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above applications lodged on 29 July 2009, 8 April 2010 and 25 May 2011,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1. The common feature of these three applications is that they are brought by Cypriot nationals who complain that the children of women displaced from the north of Cyprus after 1974 were not entitled to refugee cards (and thus the benefits to which the holders of such cards were entitled), whereas the children of displaced men were entitled to such cards. The difference in treatment was removed in 2013, that is, after the introduction of the present applications: see relevant domestic law and practice at paragraph 7 below.

2. The applicants are all either displaced women or the children of displaced women. A list of the applicants is set out in the appendix. The applications were lodged on 29 July 2009, 8 April 2010 and 25 May 2011 respectively. The applicants in application nos. 43331/09 and 27877/10 are represented by Mr Loukis G. Loucaides. The applicants in application no. 36144/11 are separately represented by Mr Andreas S. Angelides. Mr Loucaides and Mr Angelides both practise in Nicosia.

3. The legislative provisions which, at the material time, granted refugee cards to the children of displaced men but not the children of displaced women were unsuccessfully challenged before the Supreme Court in Vrountou v. the Republic (appeal no. 3830): see paragraphs 8 and 9 below. The final judgment of the Supreme Court in that case was given on 3 March 2006.

4. Following the Supreme Court ’ s judgment in Vrountou v. the Republic , Evangelia and Markella Chakkas, the applicants in application no. 36144/11, brought their own challenge to the refugee card scheme, lodging that challenge with the Supreme Court on 7 August 2006. They too alleged that, in according preferential treatment to the children of displaced men over the children of displaced women, the scheme was discriminatory and contrary to Article 14 of the Convention. That challenge was rejected by the Supreme Court at first instance on 19 January 2007 and on appeal to the revisional jurisdiction of the court on 1 December 2010, in each case for the reasons the court had given in its Vrountou v. the Republic judgment.

B. Relevant domestic law and practice

1. The refugee aid scheme

5. A scheme of aid for displaced and other affected persons was introduced by the Council of Ministers by decision no. 13.503 of 19 September 1974. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined by the Council of Ministers as being any person whose permanent residence is in the occupied areas, or in an inaccessible area or in an area which was evacuated to meet the needs of the National Guard.

6. A circular on the implementation of the scheme was issued by the Director of Care and Rehabilitation of Displaced Persons Service (“SCRDP”) on 10 September 1975. In relevant part it reads:

“(a) When a displaced woman marries a non-displaced man, the husband and children cannot be registered or considered as displaced persons;

(b) When a displaced man marries a non-displaced woman, the non-displaced wife will be registered on the refugee identity card of the husband. The children will be considered as refugees and will be registered on the refugee identity card of their father.”

7 . Although the scheme was progressively extended, it was not until the passage of the Census Bureau (Amendment) (No. 2) Law of 2013 (N. 174(I)/2013) that children of displaced women became entitled to refugee cards on the same terms as the children of displaced men.

2. Vrountou v. the Republic

8 . The pre-2013 scheme was unsuccessfully challenged before the Supreme Court by Maria Vrountou: Vrountou v. the Republic (appeal no. 3830). Ms Vrountou was the daughter of a displaced woman; she was refused a refugee card on 6 March 2003. Before the Supreme Court she claimed, inter alia , that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution of Cyprus and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No 1. She claimed that the scheme also breached Article 13 of the Convention.

9 . That challenge was dismissed at first instance on 12 May 2004 and on appeal by the Supreme Court (revisional jurisdiction) on 3 March 2006, the latter finding that it was unable to extend the application of the scheme to the children of displaced women when the legislature had not done so. Ms Vrountou lodged an application (33631/06) with this Court on 25 July 2006 and the C ourt gave judgment in her case on 13 October 2015.

COMPLAINTS

10. The applicants in all three applications complained that the difference in treatment between the children of displaced men and the children of displaced women was discriminatory. They thus alleged violations of Article 8 alone or taken in conjunction with Article 14 of the Convention, Article 1 of Protocol No. 1 alone or taken in conjunction with Article 14 of the Convention, and Article 1 of Protocol No. 12. They also allege that they were deprived of an effective remedy, in violation of Article 13 alone or taken in conjunction with Article 14 of the Convention.

11. Evangelia and Markella Chakkas in their application (no. 36144/11) also alleged that the difference in treatment was inhuman and degrading treatment, contrary to Article 3 of the Convention and that, in failing properly to examine their complaints on the basis of the Convention, on the basis of European Union law and on the basis of relevant international treaties and jurisprudence, the Supreme Court had deprived them of the right to a fair trial, in violation of Article 6 of the Convention.

THE LAW

12. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

13. Having done so, t he Court must first determine whether the applicants in these cases have complied with the admissibility requirements contained in Article 34 and Article 35 § 1 of the Convention. In particular, it is necessary to consider two questions: first, whether those applicants who are displaced women themselves (rather than the children of displaced women) have victim status for the purposes of Article 34 and second, whether the applicants in general have complied with the six-month rule contained in Article 35 § 1.

A. General principles

1. Victim status for the purposes of Article 34

14. In so far as relevant, Article 34 provides as follows:

“The Court may receive applications 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 the Convention or the Protocols thereto ...”

15. The Court has interpreted Article 34 as meaning that, in order to be able to rely on the substantive provisions of the Convention, two conditions must be met: an applicant must fall into one of the categories of petitioners mentioned in Article 34 of the Convention, and he or she must be able to make out a prima facie case that he or she is the victim of a violation of the Convention. The term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue (see, as a recent authority, Lolova and Popova v. Bulgaria (dec.), no. 68053/10, 20 January 2015).

16. The present applications have been brought by displaced women and the children of displaced women. The central complaint is that the children of displaced women were not entitled to refugee cards. However, those applicants who are themselves displaced women were entitled to refugee cards; only their children were not entitled to those cards. There is nothing to suggest that displaced women were in any way adversely affected by the inability of their children to obtain refugee cards. It follows that those applicants who are displaced women have not made out a prima facie case that they are victims of a violation of the Convention. Accordingly, the complaints made by the applicants who are displaced women are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The six-month rule

17. Article 35 § 1 of the Convention stipulates:

“The Court 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.”

18. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective.

19. The six-month rule stipulated in Article 35 § 1 is intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible.

20. In assessing whether an applicant has complied with Article 35 § 1, it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated.

21. Thus where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant.

22. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see, for example, Lang and Hastie v. the United Kingdom (dec.), nos. 19/11 and 36395/11, §§ 24-28, with further references therein).

23 . Finally, a remedy will be ineffective inter alia if it offers no reasonable prospects of success. This will include instances where there is recent, negative case-law of the domestic appeal court in cases which are factually or legally similar to the applicant ’ s case and where there is no likelihood of the appeal court reversing its own recent precedent (see, for instance, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 59 and 60, ECHR 2013 (extracts); Paksas v. Lithuania [GC], no. 34932/04, § 76, ECHR 2011 (extracts); Gas and Dubois v. France (dec.), no. 25951/07, 31 August 2010; Salah Sheekh v. the Netherlands , no. 1948/04, §§ 121–123, 11 January 2007).

24. Applying those principles to the remaining applicants in present three cases (that is, those applicants who are the children of displaced women), the Court considers that the Supreme Court ’ s judgment in Vrountou v. the Republic settled the question as to whether, as a matter of domestic law, the children of displaced women should be given refugee cards on the same terms as the children of displaced men. In concluding that the refugee aid scheme could not be so extended without usurping the function of the legislature, the Supreme Court heard full argument on the question of the compatibility of the scheme with the provisions of the Convention, particularly Article 14. Once the Supreme Court had given judgment on 3 March 2006 there were, therefore, no further effective remedies which could be pursued in Cyprus by the children of displaced women. Therefore, to comply with the six-month rule, any application by the child of a displaced woman should have been lodged with this Court within six months of 3 March 2006.

25. However, the applicants covered by the first and second applications waited until 29 July 2009 and 8 April 2010 respectively before lodging their applications with the Court. They have given no reason for the delay in doing so. Indeed, in their applications they referred to the fact that, in light of Vrountou v. the Republic , they had no effective remedy in Cyprus. Accordingly, these applications, having been lodged well after 3 March 2006, are out of time and must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

26. For the remaining applicant in the third application, Evangelia Chakkas, the position is no different. Although Ms Chakkas brought her own challenge in the Supreme Court, in light of Vrountou v. the Republic , that challenge was bound to fail. There was no likelihood of the Supreme Court overruling its Vrountou judgment, not least when her submissions before the Supreme Court were substantially the same as those made by Ms Vrountou in her case (see Maktouf and Damjanović and the other cases cited at paragraph 23 above) . Accordingly, the complaints made by Ms Chakkas in this application concerning Articles 8, 13 and 14 of the Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12, having been lodged more than six months after 3 March 2006, are also out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

27. To the extent that Ms Chakkas makes complaints not considered by the Supreme Court in Vrountou , namely that the scheme also violated Article 3 of the Convention and that the Supreme Court in her case violated Article 6 of the Convention, the Court considers that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. They are manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 12 November 2015 .

             Françoise Elens-Passos Guido Raimondi Registrar President

Appendix

43331/09 CHAKKAS AND OTHERS v. Cyprus

Date of introduction 29/07/2009

N o .

First name LASTNAME

Date of Birth

Nationality

City

Emmanuel CHAKKAS

01/12/1984

Cypriot

Nicosia

Samer AKKAWI

15/04/1991

Cypriot

Nicosia

Tarek AKKAWI

10/07/1989

Cypriot

Nicosia

Eleni DEMETRIOU

07/11/1981

Cypriot

Nicosia

Ifegenia DEMETRIOU

24/09/1955

Cypriot

Nicosia

Sofronis DEMETRIOU

21/08/1979

Cypriot

Nicosia

Christiana GEORGIOU

01/03/1999

Cypriot

Latsia

Pantelitsa GEORGIOU

22/07/1997

Cypriot

Latsia

Socratis IOANNIDES

20/10/1983

Cypriot

Strovolos

Eleni IOANNIDOU

22/04/1979

Cypriot

Strovolos

Sophia IOANNIDOU

10/06/1954

Cypriot

Strovolos

Helena KALIMERI

30/03/1958

Cypriot

Nicosia

Costantinos Raphael KAPARDIS

26/06/1994

Australian, Cypriot

Nicosia

Elena KAPARDIS

29/08/1990

Australian, Cypriot

Nicosia

Maria KRAMBIA-KAPARDIS

17/10/1963

Cypriot

Nicosia

Kalliope LOUTSIOU STEPHANOU

29/03/1955

Cypriot

Nicosia

Chrysostomos MICHAELIDES

10/07/1982

Cypriot

Nicosia

Michalis MICHAELIDES

24/05/1979

Cypriot

Lakatamia

Kleopatra MICHAELIDOU

08/05/1957

Cypriot

Nicosia

Christos MICHALOPOULOS

21/04/1984

Cypriot

Nicosia

Maria MICHALOPOULOU

22/07/1960

Cypriot

Nicosia

Mikaella MICHALOPOULOU

11/04/1987

Cypriot

Nicosia

Nicoletta MICHALOPOULOU

02/01/1989

Cypriot

Nicosia

Alexandros MIKELLIDES

06/03/1986

Cypriot

Nicosia

Andys MIKELLIDES

05/08/1987

Cypriot

Nicosia

Nikolas MIKELLIDES

23/10/1983

Cypriot

Nicosia

Maria MIKELLIDES-KALIMERIS

11/11/1954

Cypriot

Nicosia

Andreas MINAIDES

06/10/1983

Cypriot

Lakatamia

Emilia MINAIDOU

17/03/1980

Cypriot

Lakatamia

Maria MINAIDOU

09/03/1961

Cypriot

Lakatamia

Marianna NICOLAIDES

27/10/1981

Cypriot

Nicosia

Tasia PASHIA NICOLAIDES

23/02/1957

Cypriot

Nicosia

Victoria NICOLAIDES

02/10/1987

Cypriot

Nicosia

Androulla PALAONTA

09/04/1963

Cypriot

Latsia

Dimitris STEPHANOU

01/02/1985

Cypriot

Nicosia

Manolis STEPHANOU

20/10/1983

Cypriot

Nicosia

Persephone STEPHANOU

14/06/1986

Cypriot

Nicosia

27877/10 PETROU AND OTHERS v. Cyprus

Date of introduction 08/04/2010

N o .

First name LASTNAME

Date of Birth

Nationality

City

Nikoletta PETROU

14/02/1982

Cypriot

Nicosia

Christina ANASTASIOU

18/05/1944

Cypriot

Nicosia

Margarita ANASTASIOU

06/08/1981

Cypriot

Nicosia

Tassos ANASTASIOU

27/07/1976

Cypriot

Nicosia

Monica ANDREOU

18/07/1978

Cypriot

Nicosia

Petros ANDREOU

19/05/1982

Cypriot

Nicosia

Maria CHARALAMBOUS

28/01/1981

Cypriot

Nicosia

Panagiota ANDREOU CHARALAMBOUS

11/04/1953

Cypriot

Nicosia

Petros CHARALAMBOUS

10/04/1984

Cypriot

Nicosia

Andria CHRISTODOULOU

06/09/1988

Cypriot

Nicosia

Theonitsa CHRISTODOULOU

10/09/1993

Cypriot

Nicosia

Katerina CHRISTOU

16/09/1977

Cypriot

Nicosia

Stephani CHRISTOU

06/01/1986

Cypriot

Nicosia

Chrystalla DEMETRIOU

14/07/1954

Cypriot

Nicosia

Elena DEMETRIOU

20/05/1985

Cypriot

Nicosia

Valentinos DEMETRIOU

10/03/1983

Cypriot

Nicosia

Anthos ELIADES

16/05/1980

Cypriot

Nicosia

Eliana ELIADES

28/04/1976

Cypriot

Nicosia

Froso ELIADES

28/03/1943

Cypriot

Nicosia

Ermolia FIAKA

05/08/1954

Cypriot

Nicosia

Georgios FIAKA

03/12/1978

Cypriot

Nicosia

Maria FIAKA

10/01/1983

Cypriot

Nicosia

Theofanis FIAKA

19/01/1981

Cypriot

Nicosia

Antonis GAVRIELIDES

27/12/1982

Cypriot

Nicosia

Eleni GAVRIELIDOU

03/12/1980

Cypriot

Nicosia

Katerina GAVRIELIDOU

08/03/1952

Cypriot

Nicosia

Constantinos GEORGIADES

05/02/1985

Cypriot

Nicosia

Anna Marina GREGORIOU

01/03/1994

Cypriot

Psimolophou

Filippos GREGORIOU

14/04/1988

Cypriot

Psimolophou

Kyriacos GREGORIOU

17/07/1986

Cypriot

Psimolophou

Mariandri GREGORIOU

25/09/1959

Cypriot

Psimolophou

Rodoulla GREGORIOU

28/03/1990

Cypriot

Psimolophou

Chrystalla HADJIKLEANTHOUS

01/03/1985

Cypriot

Nicosia

Georgios HADJIKLEANTHOUS

10/05/1981

Cypriot

Nicosia

Sotira HADJIKLEANTHOUS

05/11/1952

Cypriot

Nicosia

Nelli KATSIAMI

12/12/1951

Cypriot

Nicosia

Alexis KYRIAKIDES

29/01/1983

Cypriot

Nicosia

Nicholas KYRIAKIDES

05/05/1979

Cypriot

Nicosia

Phanos KYRIAKIDES

21/10/1980

Cypriot

Nicosia

Maria BARPA KYRIAKIDOU

09/06/1945

Cypriot

Nicosia

Stelios KYTHREOTIS

19/10/1990

Cypriot

Larnaca

Maria KYTHREOTOU

04/04/1950

Cypriot

Larnaca

Androulla LEANDROU

15/10/1946

Cypriot

Nicosia

Chrystalla LEANDROU

21/07/1969

Cypriot

Anayia

Angela NICOLAOU

23/12/1964

Cypriot

Nicosia

Michalis NICOLAOU

06/12/1988

Cypriot

Nicosia

Rafaela NICOLAOU

11/08/1998

Cypriot

Nicosia

Victoria NICOLAOU

24/12/1987

Cypriot

Nicosia

Maria OMIROU

04/11/1980

Cypriot

Limassol

Michalis OMIROU

31/01/1978

Cypriot

Limassol

Kyriakos PANAYIDES

17/11/1980

Cypriot

Nicosia

Effie PANAYIDOU

07/07/1983

Cypriot

Nicosia

Maria PANAYIDOU

15/08/1958

Cypriot

Nicosia

Mikaella PANAYIDOU

19/09/1992

Cypriot

Nicosia

Pantelitsa PANAYIDOU

19/08/1979

Cypriot

Nicosia

Constantina PANAYIOTOU

11/06/1986

Cypriot

Nicosia

Panayiotis PANAYIOTOU

18/07/1983

Cypriot

Nicosia

Tasoula PANTELI CHRISTOULOU

10/10/1957

Cypriot

Nicosia

Afroditi PAPADIMITRIOU

19/09/1986

Cypriot

Nicosia

Androula PAPADIMITRIOU

11/11/1980

Cypriot

Nicosia

Maria PAPADIMITRIOU

09/04/1979

Cypriot

Nicosia

Theodora PAPADIMITRIOU

16/07/1956

Cypriot

Nicosia

Eleni OMIROU PAPAGRIGORIOU

05/07/1949

Cypriot

Limassol

Nicoletta PAPAMICHAEL

21/01/1982

Cypriot

Nicosia

Yiannis PAPAMICHAEL

06/02/1978

Cypriot

Nicosia

Maro PAPAMICHAEL CHAMBOURIDOU

18/07/1951

Cypriot

Nicosia

Vasiliki PAPAXANTHOU ANDREOU

02/08/1952

Cypriot

Nicosia

Antonis PAVLOU

19/05/1993

Cypriot

Nicosia

Menelaos PAVLOU

24/01/1988

Cypriot

Nicosia

Vasilis PAVLOU

07/06/1985

Cypriot

Nicosia

Maria PAVLOU TRYPHONOS

13/05/1961

Cypriot

Nicosia

Chrystalla Kyprianou PELASELA

13/09/1955

Cypriot

Nicosia

Charalambos PELASELAS

11/06/1980

Cypriot

Nicosia

Kypros PELASELAS

04/04/1983

Cypriot

Nicosia

Anastasia PETROU

02/06/1953

Cypriot

Nicosia

Andreas PETROU

15/09/1993

Cypriot

Nicosia

Elena PETROU

20/03/1995

Cypriot

Nicosia

Maria XYDA PETROU

09/03/1961

Cypriot

Nicosia

Petros PETROU

26/12/1977

Cypriot

Nicosia

Maria PIERIDOU CHRISTOU

09/09/1951

Cypriot

Nicosia

Maria PITSILLOU

01/02/1957

Cypriot

Nicosia

Panagiotis SEVASTIDES

16/11/1983

Cypriot

Nicosia

Eleni SEVASTIDOU

13/10/1958

Cypriot

Nicosia

Kyriaki SEVASTIDOU

22/11/1980

Cypriot

Nicosia

Alexandros SOFRONIOU

25/07/1980

Cypriot

Nicosia

Andreas SOFRONIOU

15/12/1984

Cypriot

Nicosia

Constantina SOFRONIOU

23/02/1957

Cypriot

Nicosia

Christine Andrea SYMEONIDES

30/11/1984

Canadian, Cypriot

Nicosia

Kleanthis SYMEONIDES

14/03/1994

Canadian, Cypriot

Nicosia

Stephen Constantine SYMEONIDES

28/02/1989

Canadian, Cypriot

Nicosia

Constantinos -Andreas SYMEONIDOU

02/12/1990

Canadian, Cypriot

Nicosia

Eleni SYMEONIDOU

15/07/1959

Canadian, Cypriot

Nicosia

Christodoulos TYRIMOU

22/05/1978

Cypriot

Limassol

Georgios TYRIMOU

26/06/1976

Cypriot

Limassol

Kyriaki TYRIMOU SAVVA

14/11/1948

Cypriot

Limassol

Marios TYRIMOU

21/09/1982

Cypriot

Limassol

Androula TYRIMOU

21/09/1982

Cypriot

Limassol

36144/11 CHAKKAS v. Cyprus

Date of introduction 25/05/2011

N o .

First name LASTNAME

Date of Birth

Nationality

City

Evangelia CHAKKAS

16/08/1987

Cypriot

Nicosia

Markella ISAIA CHAKKA

21/01/1958

Cypriot

Nicosia

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