FOURTH SECTION

DECISION

Application no . 16865/10 Ali Kamil KARAMANOÄžLU and others against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 12 March 2013 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 10 March 2010,

THE FACTS

1. The applicants Ali Kamil Kar a manoğlu , Emine Kamil Karamanoğlu , Ali Riza Cemgünal and Ali Riza Derya , are all Cypriot citizens born respectively in 1966, 1946, 1967 and 1968 and resident in Güzelyurt in northern Cyprus . They are represented before the Court by Mr Z.M. Necatigil , One r Serifoğlu and Sulen Karabacak , lawyers practising in Turkey .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants are the heirs of the deceased Kamil Ali Riza who died in 2002. On 23 April 2004, the first applicant was appointed as administrator of the estate of his deceased father who was the registered owner of a half share of six fields in the district of Limassol , which land had vested in the Custodian under Law 139/1991 as belonging to Turkish Cypriots who no longer lived in the Republic of Cyprus since 1974. Part of the property had been granted to Greek-Cypriot refugees for temporary use and part had been compulsorily purchased, with the Custodian ’ s consent, for public interest purposes. An amount in respect of compensation for the compulsory acquisition had been deposited in the Special Fund of Turkish-Cypriot properties. However, payment of the sum to the plaintiff was suspended, in accordance with section 9 of Law 139/1991, for as long as the abnormal situation continued to exist.

4. The first applicant sought the transfer of the property to the legal heirs and payment of the amount due as a consequence of the compulsory acquisition. Although the Custodian had given his consent to the issue of letters of administration, he stated in a letter of 25 November 2004 that the Turkish-Cypriot owners and their heirs did not have the right to the use of their properties vested in the Custodian and were barred from exercising any property rights without the permission of the Custodian as long as the abnormal situation created by the Turkish occupation continued. He further noted that the request for payment of the compensation could not be satisfied because, in accordance with section 9 of Law 139/91, payment of any amount owed to an owner of Turkish ‑ Cypriot property was suspended.

5. The first applicant lodged a recourse under Article 146 of the Constitution against the decision of the Custodian as set out in the letter dated 25 November 2004, requesting declarations that he had the right to be reinstated to his property and claiming that Law 139/1991 was contrary to Article 23 of the Constitution and the constitutional principle of equality, and that the compulsory acquisition had been unlawful.

6. On 19 January 2007 the Supreme Court dismissed the recourse. It found that, as the applicant had been living in the occupied areas, Law 139/1991 was applicable to the case. It further found that the applicant was not prevented from fulfilling his obligations as administrator of the deceased ’ s estate and from distributing and transferring the property to the lawful heirs. He was only prevented temporarily from possessing and administering the property. This limitation did not affect his rights and interests, which would be granted to him when the abnormal situation ended.

7. The court also dismissed the applicant ’ s claim as to the incompatibility of Law 139/1991 with Article 23 of the Constitution. In this respect it observed that the State, in 1974, had found itself faced with circumstances which necessitated the creation of a state of emergency. The State had, therefore, the duty to adopt measures even if these limited the fundamental rights and liberties protected by the Constitution. The mass movement of Turkish Cypriots and the abandonment by them of their properties in areas which were controlled by the Republic of Cyprus gave rise to a need to protect these properties for their owners ’ benefit, as stated in the preamble of the Law. The enactment and adoption of the Law was completely justified.

8. The first applicant lodged an appeal. The judgment of the Supreme Court sitting on appeal was handed down on 15 September 2009. The court noted that the applicant had not challenged the legality of the expropriation which was therefore not in issue in the proceedings which only concerned the Custodian ’ s letter of 25 November 2004; nor had the applicant asked for return of the properties. Insofar as the applicant contested any of the Custodian ’ s decisions about compensation, this was not justiciable before the Supreme Court but a civil matter to be taken up before the District Court in which the applicant could also challenge the application of section 9 to suspend payment of compensation.

B. Relevant domestic law and practice

9. The relevant laws, including Law 139/191 as amended in 2010 and domestic case-law, are set out in Kazali and Others v Cyprus (no. 49247 et al, §§ 34-100, decision of 6 March 2012).

COMPLAINTS

10. The applicants complained under Article 1 of Protocol No. 1 that they are unable to use and enjoy their properties and in particular that part had been compulsorily acquired by the State. They complained under Article 8 that there had been an interference with their homes, under Article 6 that they had been denied access to court as the Supreme Court had upheld the custodianship regime, under Article 13 that they had no effective remedy for their complaints and under Article 14 that these matters disclosed discrimination against Turkish Cypriots in the enjoyment of the above rights.

THE LAW

A. Complaints under Article 1 of Protocol No. 1

11. The applicants complain under Article 1 of Protocol No. 1 that they are unable to enjoy their property rights as regards their land which is subject to custodianship under Law 139/1991 and that part of their land was subject to compulsory acquisition.

12. Article 1 of Protocol No. 1 provides:

“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.”

13. As regards the first limb of the applicants ’ complaints about the property still under the control of the Custodian, the Court notes that the applicants have not brought proceedings in the courts of Cyprus raising these issues. While the first applicant brought a recourse procedure in the Supreme Court, it may be noted that this only concerned the issues arising from the Custodian ’ s letter challenged on constitutional grounds. The Supreme Court in its judgment emphasised that there was no claim for return of the property in issue before them. Further as concerns the applicants ’ complaints about the illegal acquisition of part of their property, it appears that there was no challenge made as to the legality of the compulsory acquisition. The Supreme Court pointed out that it was open to the applicants to go to the civil court to seek to vindicate their property rights and any rights to compensation, challenging section 9 of the impugned Law, insofar as this prevented the payment of compensation.

14. In the recent decision of Kazali (cited above), the Court gave consideration to the amendment of Law 139/1991. It noted that there was as yet no reference in domestic court decisions to the new legislative provisions, in particular, section 6A of Law 139/1991. In the event of an unsuccessful decision in the District Court, an appeal would be possible to the Supreme Court. The Court was satisfied that, in examining cases brought under the amended Law, the Cypriot courts would have due regard to this Court ’ s case-law concerning, in particular, Article 8 and Article 1 of Protocol No. 1 and that in handing down judgments they would examine the matter afresh, setting out in full their reasoning and explaining clearly whether and how the restrictions imposed on Turkish-Cypriots ’ property are justified under those Articles.

15. The Court found:

“152. In conclusion, the new provisions in Law 139/1991 are formulated in broad terms and by express reference to the guarantees of the Convention as interpreted by this Court. They allow the applicants to make a claim to the Custodian alleging a violation of their Convention rights and, in the absence of a favourable response, to lodge a case in the District Court. The remedies available include an order for restoration of the property and an order for payment of compensation to cover pecuniary and non-pecuniary damage as well as costs and expenses.

153. The Court therefore cannot exclude that Law 139/1991 as amended provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Turkish Cypriots. The applicant property owners in the present cases have not made use of this mechanism and their complaints under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies...”

16. The Court therefore finds that the applicants have not yet raised the matters of which they complain in the appropriate forum and that there is no reason to differ in this case from the conclusion above as to the availability of redress in this forum.

17. The Court concludes that the applicants have not made use of the available court remedies and their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Remaining complaints

18. Insofar as the applicants invoked Articles 8 and 14 of the Convention in respect of the interference with their property rights, these complaints must also be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

19. Insofar as they invoked Articles 6 and 13 of the Convention, complaining of lack of access to court and lack of an effective remedy, the Court refers to its reasoning above that the applicants can bring their claims before the domestic courts and apply for a range of remedies. This part of the application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court by a majority

Declares the application inadmissible.

Lawrence Early Ineta Ziemele Registrar President