FOURTH SECTION

DECISION

Application no . 24536/10 Hatice SAHAP against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 4 September 2012 as a Chamber composed of:

Lech Garlicki , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Nebojša Vučinić , Vincent A. de Gaetano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 21 April 2010 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Hatice Sahap was born in 1930 and lives in Larnaca . She was represented before the Court by Mr Z. Necatigil and Mrs S. Karabacak , lawyers practising in Lefkosa and Nicosia .

A. The circumstances of the case

2 . Since 1952, t he applicant has owned plots of land in the Republic of Cyprus . In 1974, she fled north to the area occupied by Turkey , where she has lived ever since. The applicant discovered in 2003 that part of her property was occupied by the Water Department, a weighing station and a private company; a road had also been built across the plot. She found that in 1994 part of the land had been compulsorily acquired by the Government for the purpose of building the road .

3 . The applicant brought proceedings for compensation for the land subject to compulsory acquisition (case no. 205/2003). On 18 February 2008, t he District Court of Larnaca delivered judgment in her favour , order ing the Government to pay 512,580 euros in compensation for the compulsory acquisition, with costs and interest until final payment.

4 . The applicant ’ s lawyer made repeated unsuccessful requests for payment.

B. Relevant domestic law

5 . The relevant laws, including Law 139/191 and relevant case-law on application of the legislation, are set out in Kazali and Others v Cyprus (no. 49247/08 et al, §§34-100, decision of 6 March 2012). The provisions in issue in the present case are set out below.

1. Section 9 of Law 139/1991

6 . This provides :

“The payment of any sum due to an owner of Turkish-Cypriot property in relation to such property is suspended during the abnormal situation which exists in the Republic of Cyprus by reason of the Turkish occupation.”

2 Law 139/1991 after 7 May 2010

7 . Law 139/1991 was amended by Law No. 39(1) of 2010, published in Official Gazette no. 4240 of 7 May 2010, by the insertion of additional provisions. The following was inserted at the end of section 3:

“Provided that in the exercise of his above authority to administer Turkish-Cypriot properties during the abnormal situation the Minister also has the power as custodian, to lift by duly reasoned decision and under terms which are in his judgment appropriate the custodianship concerning particular Turkish-Cypriot property or part of it, after taking into account in connection with the administration the situation and circumstances of each case and weighing all factors relevant to this matter, including whether the Turkish-Cypriot owner of the property or his heirs or successors in title, as the case may be, occupy property belonging to a Greek-Cypriot in the areas not under the Republic ’ s control:

Provided further that inter alia the following factors weigh in favour of lifting the Custodianship of Turkish-Cypriot property–

(a) that the matter concerns the administration of property which at the time it came under its regime of custodianship, its Turkish-Cypriot owner had ordinary residence abroad where he had gone at any time before or after the Turkish invasion of 1974, and the said owner continues to reside there or has returned or intends to return from abroad for permanent settlement in the Government controlled areas of the Republic,

(b) that the matter concerns the administration of property which at any time after it came under its regime of custodianship by the Custodian the Turkish-Cypriot owner of the property settled permanently in the Government controlled areas of the Republic and continues to be constantly settled there permanently ,

(c) that the property under administration concerns a house which its Turkish ‑ Cypriot owner was living [in] and occupying before the Turkish invasion of 1974 and intends to live in it upon his coming from the occupied areas for permanent settlement in the Government controlled areas of the Republic.”

8 . A new s ection 6A was inserted into the Law :

“(1) Violation of a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ratified by Law, owing to the application of a provision of this Law, is actionable.

(2) A person alleging violation of any right guaranteed by the above Convention and or its Protocols owing to the application of a provision of this Law in his case, is entitled, in case of rejection of his relevant claim by the Minister, to have recourse to the district courts by way of action brought against the Republic and the Custodian for the alleged violation, and to claim for the violation the remedies provided for in this section:

Provided that where the remedies sought include a claim by the owner for an order of the court that his property under custodianship under the provisions of this law be restored to him, the action is also directed against the person lawfully in occupation of the property.

(3) In determining in an action under sub-section (2) whether the plaintiff ’ s right was violated the court examines the circumstances of the case and takes into account the factors which the European Court of Human Rights takes into account as relevant to the issue to be determined as these transpire from its relevant case-law on the matter.

(4) Where in an action under this section the court determines that the plaintiff ’ s right was violated, he is entitled in the action:

(a) to compensation for any pecuniary damage, loss, costs, and expenses actually incurred on account of the violation,

(b) to compensation for non-pecuniary damage or injury sustained on account of the violation,

(c) to legal costs actually incurred by him on account of the violation,

(d) to the issue of a binding order of recognition of right under the Courts of Justice Laws,

(e) to any other remedy that the court has power to grant in exercise of its civil jurisdiction under the Courts of Justice Laws or any other law for the time being in force, or the applicable general principles of law.

(5) For ascertaining the damage attributable to the violation as provided for in subsection (4) and assessing and awarding compensation under the said sub-section, the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they transpire from its case-law in cases of violation of the right concerned which is guaranteed by the above Convention or its Protocols.

Where in an action under this section the court issues an order for the restoration to the plaintiff of property under custodianship, the Custodian and the property ’ s lawful occupier are entitled in the action by relevant respective counterclaims against the plaintiff, to any amounts of costs that each has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law:

Provided that the said right of the lawful occupier is only for costs of repairs, improvements, developments, building and conversions he has effected on the property with the Custodian ’ s permission.

(7) Where the Custodian for purposes of compliance with a judgment by the court in an action under this section decides to lift the custodianship of Turkish-Cypriot property, he is entitled by action against the owner in whose favour the said judgment was issued, or against his heirs or successors in title, as the case may be, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law while it was under custodianship:

Provided that a person lawfully in occupation of the said property at the time of the judgment of the court or of the above decision of the Custodian and subsequently forced to abandon it as a result of the court judgment or the lifting of its custodianship, is entitled by action against the above owner, his heirs and successors in title, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property with the Custodian ’ s permission whilst he was in occupation.”

COMPLAINTS

9 . The applicant invoke d Article 1 of Protocol No. 1 and Articles 6, 13 and 14 , complaining that she still had not received the compensation awarded by the domestic court for the compulsory acquisition of her property due to the operation of section 9 of Law 139/1991 and that her remaining property remains under the control of the Custodian.

THE LAW

A. Concerning Article 1 of Protocol No. 1

10 . The applicant complains under Article 1 of Protocol No. 1 that she is unable to enjoy her property rights as regards her land which is subject to custodianship under Law 139/1991 and that she has been denied the compensation due to her for compulsory acquisition of part of her property due to the operation of section 9 of that Law.

11 . 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.”

12 . As regards the first limb of the applicant ’ s complaints about the property under the control of the Custodian, the Court notes that the applicant has not brought proceedings in the courts of Cyprus raising these issues. The Court recalls that in 2010 the impugned Law 139/1991 was amended to include express provisions indicating that the Custodian could lift the custodianship on Turkish-Cypriot properties and that persons could apply to the District Court where they considered that their rights had been violated in respect of decisions relating to that property and wished to apply for compensation in that regard.

13 . The applicant has asserted that such proceedings would be pointless, referring to the policy of the respondent State and case-law of the domestic courts, particularly of the Supreme Court in the context of cases lodged pursuant to Article 146, where Law 139/1991 had been found justified on the ground of the law of necessity.

14 . In the recent decision of Kazali (cited above) , the Court acknowledged that the case-law of the Cypriot courts cited by the parties, which pre-dated the entry into force of the amended Law, indicated a resistance to the argument that the provisions of Law 139/1991 violated the Convention, and in particular Article 1 of Protocol No. 1. However, there was as yet no reference in domestic court decisions to the new legislative provisions, in particular, section 6A of Law 139/1991, and as a consequence the Court considered that it was not clear how the courts would approach their task of interpreting the provisions of the amended Law. 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 finds no reason to differ from this conclusion in the present application.

17 . As regards the second limb of the applicant ’ s complaints concerning the lack of payment of compensation awarded by the domestic court, the Court notes that the applicant is not complaining about the non-enforcement of an award under a final, binding judgment. Indeed the applicant ’ s whole argument is that payment is not enforceable due to operation of the legislation suspending payment of compensation which was in place at the time that the court made the award. The Court would recall that, as found in the Kazali decision (cited above), the new section 6A of Law 139/1991 referred to the rejection of a “claim” by the Custodian giving rise to a right to bring an action in the District Court and to allege a violation of the Convention; this would appear to cover applicants whose properties have been compulsorily acquired and compensation suspended under section 9 of the Law, Nothing presented to the Court by the Government or the applicants in the Kazali decision was found to preclude an application being made to the Custodian for payment of compensation by the Custodian in respect of compulsory acquisition of Turkish-Cypriot property; proceedings could also be taken in the courts in the event of an unfavourable decision.

18 . Thus, it would be open to the applicant to take proceedings in the District Court under the amended provisions of Law 139/1991 to claim that the operation of section 9 infringed her Convention rights in respect of the suspension of payment of the compensation and to appeal any negative decision to the Supreme Court. She has not done so.

19 . The Court concludes that the applicant has not made use of the available court remedies and her 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

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

21 . Insofar as she invokes Article 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 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 reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Lech Garlicki Deputy Registrar President