FOURTH SECTION

DECISION

Application no . 67824/10 Sermin KEMAL (AKA BALCI) against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 27 November 2012 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Vincent A. de Gaetano , Paul Mahoney , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 12 November 2010 ,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicant, born in 1941, is a Cypriot citizen of Turkish-Cypriot descent, resident in Nicosia .

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

A charitable trust arrangement of the type known as “ vakf ” was set up in the early twentieth-century by Hatice and Siddika Hanimlar concerning 20 immovable properties was set up to administer 23% of the income for charitable purposes, 15% for the families who had worked for the Hanimlar family and 62% for the Hanimlar descendants in perpetuity. The applicant claims to be a beneficiary of the said trust as heir of her father who died in 1985. Her father had received income from the trust until 1974 when the Turkish forces invaded Cyprus . Her mother had been the last “ mutevelli ” or administrator of the trust until her death in 1968, after which the High Council of Evkaf (the administrative body supervising vakf property) took over the administration of the trust.

On 30 May 2005, the applicant requested the Attorney-General ’ s permission to commence legal proceedings against the Evkaf for breach of trust in that no income had been paid to beneficiaries and to have herself appointed as the mutevelli of the trust, and for the property to be vested in her name as the mutevelli .

On 21 September 2005, the Attorney-General refused to give consent.

On 14 April 2006, the applicant instituted proceedings in the Supreme Court without consent from the Attorney-General, claiming appointment as mutevelli and vesting of the properties in her name and naming Evakf as defendant.

The Attorney-General filed opposition, raising issues as to the jurisdiction of the court in the absence of his consent. He also disputed that the applicant had any right to be appointed mutevelli , there being other beneficiaries who could make that claim also.

A hearing was held on 20 December 2007. On 17 January 2008, the Supreme Court rejected the applicant ’ s claims, principally because of the lack of consent given by the Attorney-General. It noted that vakf property was now vested in the Custodian of Turkish-Cypriot properties pursuant to Law 139/1991 and that the Custodian had possession of all properties where the Turkish-Cypriot owners did not live in the Republic. The applicant ’ s lawyer had raised allegations during the hearing claiming that the Custodian if now regarded as the effective administrator of the trust property should be replaced due to bad administration but this allegation did not fall to be examined as no grounds seeking remedies on this basis had been properly lodged.

On 27 February 2008, the applicant served notice of appeal against the judgment. After a hearing on 12 February 2010, the Supreme Court rejected the appeal in a judgment dated 18 May 2010, upholding the reasoning of the previous decision.

B. Relevant domestic law and practice

The relevant case-law and laws are set out in Kazali and Others v Cyprus (no. 49247 /08 et al, §§ 34-100, decision of 6 March 2012).

COMPLAINTS

The applicant invoked Article 1 of Protocol No. 1 complaining about the refusal to appoint her as mutevelli and to have the property vested in her name as administrator. She complains further that even if the property had been put into her name she still would not have been able to receive any income as beneficiary as the property was held under custodianship.

The applicant invokes Article 8 claiming that there is an interference with her right to respect for home as pressure is put on her to move as restrictions do not apply to property where the claimant lives in the Republic. She invokes Article 6 claiming that the Supreme Court did not examine all the grounds of appeal, Article 13 that the Attorney-General by refusing consent had prevented her claims being examined and that the courts condoned this situation and Article 14 claiming that she is discriminated against in enjoyment of her property rights as she is Turkish- Cypriot.

THE LAW

The applicant complained of the refusal to appoint her as mutevelli of the vakf property in respect of which her father was a beneficiary, invoking Article 1 of Protocol No. 1 which 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.”

The applicant also invoked Articles 8 (protection of home and private life) and 14 (prohibition of discrimination) in respect of this matter.

The Court notes that the applicant took proceedings claiming that the Evkaf was in breach of trust due to the failure to pay the beneficiaries income from the trust properties and claiming to be made mutevelli in its place. These proceedings failed principally because they had been brought without the consent of the Attorney-General, which was required by law and thus the courts did not have jurisdiction. Insofar as the applicant complained during the proceedings about the fact that the Custodian who had possession of the properties pursuant to Law 139/1991 was not properly administering the properties, the Court recalls that the Supreme Court did not examine the complaint as it had not been duly raised in the grounds of claim.

In these circumstances, the Court is not persuaded that the refusal to appoint the applicant as administrator of the trust involved any interference with the applicant ’ s property rights which relate only to her claims as heir to her father who was a beneficiary of the trust. Her claim to become administrator to distribute the property to the beneficiaries in accordance with the trust is not in itself cannot be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1, nor is it apparent from the materials submitted that the applicant has established any right to become the administrator, such claim not being recognised by the Evakf , the Land Registry or the courts.

As concerns the applicant ’ s own claims to income as a beneficiary, the Court notes that this was not in issue in the proceedings in the Supreme Court. It does not appear from the file that the applicant has made any claim to the Custodian for the income to be paid out to the beneficiaries or for him to release the vakf property from custodianship regime. In particular, she has failed to take the steps available under domestic law to assert her rights, by pursuing any decision or refusal by the custodian on those issues in a claim in the District Court under the amended Law 139/1991 which since 7 May 2010 enables persons to make claims for compensation as regards breaches of rights to property affected by the custodianship regime. In the Kazali decision (cited above), having examined arguments as to the availability and effectiveness of the amended law, 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...”

The Court finds no reason to differ from this conclusion in the present application.

The complaints under Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§1 and 4 of the Convention.

Insofar as the applicant invokes Articles 6 of the Convention as regards inadequate response of the Supreme Court to her grounds of claim, the Court would note that the principal ground of refusal, based on the lack of jurisdiction due to the lack of the statutorily-required consent of the Attorney-General, impliedly rendered consideration of the other grounds unnecessary and thus it cannot be said that the court failed to give the applicant a fair hearing. As regards Article 13, the Court refers to its reasoning above that the applicant can bring her 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 reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Ineta Ziemele Registrar President