FIRST SECTION

DECISION

Application no. 18163/04 by Nezire Ahmet Adnan SOFI against Cyprus

The European Court of Human Rights (First Section), sitting on 14 January 2010 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 21 April 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the intervening Government ’ s comments,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Nezire Ahmet Adnan Sofi, is a British and Cypriot national who was born in 1926 and lives in London . She was represented before the Court by Mrs S. Karabacak and Mr Z. Necatigil, lawyers practising in Mersin Turkey . The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus . The Turkish Government, intervening under Article 36 § 2 and Rule 44 § 2, were represented by their Agent.

A. The circumstances of the case

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

The applicant had ownership rights over two plots of land in the district of Larnaca, plots nos. 134 and 402, with Registration nos. G135 and F392 on which two houses were situated. Plot 134 is co-owned with another person.

The applicant submitted that from 1950 to 1963, when intercommunal strife broke out she, her late husband and children used to live in the house on plot 402; they had let out the house on plot 134. In 1963, when Larnaca came under attack, the applicant and her family sought refuge from the hostilities in an enclave populated by Turkish Cypriots. They resided there with other members of their extended family until 1974.

Following the events of 1974, the applicant submitted that she was forced to leave the island and had to abandon her properties as well as an unspecified amount deposited to her husband ’ s accounts in banks operating in the government-controlled area.

Measures were taken in respect of the properties abandoned by Turkish Cypriots in the areas of the island still under the control of the Cypriot Government. An order no. 1218 of 11 September 1975 was published in the Official Gazette No. 671, placing such properties under the administration of the authorities.

Legislation was passed in 1991, the Law on the Administration of Turkish Cypriot Properties in the Republic and Other Related Matters (Law 139/1991) vesting the administration of all Turkish Cypriots in Cyprus in the Minister of the Interior as "Custodian".

By letter dated 23 April 2003, the applicant requested from the Ministry of Interior the recovery of possession of her house, enclosing the land certificate for plot 134. She informed them that she intended to move back to her house in Larnaca and requested the Ministry to ensure that the house would be empty before 15 July 2003.

On 25 July 2003 the latter replied that the relevant properties had been vested in the Custodian of Turkish-Cypriot properties and that a family of displaced persons of Greek-Cypriot origin from the northern part of Cyprus was living in them. The authorities offered to undertake the necessary arrangements to provide the applicant with another residence if she deemed that such an action would be necessary.

By letter dated 13 February 2004 the Ministry of Interior informed the occupier of plot 134, a Mr P, that he was using the house illegally and without the consent of the Custodian. He was called to leave the property within a period of thirty days otherwise the Service of Administration of Turkish-Cypriot properties would take measure to recuperate the property in accordance with section 15(3) of Law 139/1991. It had appeared on investigation that, from about 1975, the house had been occupied by a Greek Cypriot refugee. In 1978, the local authority had given him notice to vacate as it was structurally dangerous. The house was then repaired. From 1981, another refugee Mrs P. occupied the house. After her death, her son Mr P, who was not a refugee had remained unlawfully without having applied for, or received permission from the Custodian. Part of the house had also been used for storage purposes without the necessary permission.

No legal proceedings for possession were initially pursued by the authorities as the applicant ’ s intentions were uncertain; however in view of the Custodian ’ s instructions to undertake such proceedings, the committee set up to deal with housing applications refused an application by Mr. P for permission to occupy the house. This was approved by the Custodian.

By letter dated 6 April 2004, the Ministry informed the applicant that her request was being examined.

B. Relevant domestic law and practice

The Turkish-Cypriot properties (Administration and other matters) (Temporary Provisions) Law of 1991 (as amended) (hereinafter Law 139/1991) was enacted according to its preamble to regulate by law the administration of Turkish-Cypriot properties in the Republic of Cyprus, which became essential for its protection in light of the following:

“Whereas, because of the massive removal of the Turkish-Cypriot population as a result of the Turkish invasion to the areas occupied by the Turkish invasion forces and the prohibition by such forces of the movement of such population within the areas of the Republic of Cyprus, properties which consist of movable and immovable property were abandoned,

And whereas it became essential for the protection of those properties to take immediate measures,

And whereas the measures taken included the administration of such properties by a special committee which was constituted through administrative arrangements;

And whereas the regulation by law of the question of the Turkish-Cypriot properties in the Republic became necessary.

...”

The relevant sections of this Law provided, inter alia, for a Custodian to be appointed with the duty of administering all Turkish-Cypriot properties, with powers to enter into contracts and leases with regard to the properties, to collect rent or other sums to be held on behalf of the owner, to carry out repairs and, if necessary, to sell.

COMPLAINTS

The applicant complained that she was denied access to and enjoyment of her immovable property in Cyprus, which disclosed a continuing violation of Article 1 of Protocol No. 1 (right to peaceful enjoyment of possessions), a continuing violation of Article 8 (right to respect for home) in that one of the properties had been their home, a violation of Article 14 (prohibition against discrimination in enjoyment of Convention rights) in that she had been discriminated against as a Turkish Cypriot and Article 13 (right to an effective remedy for Convention complaints).

THE LAW

On 8 January 2010, the Court received the following declaration from the Government:

“ I, Mr Petros Clerides , declare that the Government of Cyprus express their sincere regret for the inconvenience suffered to Mrs Nezire Ahmet Adnan Sofi (hereinafter “the applicant”) due to the fact that she was deprived of the use and control of her property for the period of time to which her complaint relates. The Government have fully satisfied the applicant ’ s claim for vacant possession of both houses with the result that from January 2009 she has been free to exercise freely all her rights as owner of the property, free of occupying tenants. These rights are fully and permanently restored in all respects enabling the applicant ’ s heirs and successors and any person claiming rights through her to exercise their rights over the property freely and fully. The Attorney-General has undertaken initiatives to effect certain changes to Law no. 139/1991, namely Turkish Cypriot Properties (Administration and Other Matters) Law 1991. The Government further offer to pay the applicant 427,150.36 euros (corresponding to 250,000 Cyprus pounds (CYP)) for pecuniary damage for loss of use of her property, 50,000 euros for non-pecuniary damage and 59,801.06 euros (corresponding to CYP 35,000) for costs and expenses. These terms are put forward with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights , in which the applicant had principally invoked Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, as well as Article 14 of the Convention read separately or in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 with regard to the legal impediment placed on her enjoyment of her properties by Law no. 139/1991 .

Th e above sums, which are to cover any p ecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable to the applicant. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. ”

On 28 December 2009, the Court received the following declaration signed by the applicant:

“We, Mr Zaim M. Necatigil and Ms Sulen Karabacak, the legal representatives of Mrs Nezire Ahmet Adnan Sofi (hereinafter “the applicant”) take note t hat the Government of Cyprus express their sincere regret for the inconvenience suffered to the applicant due to the fact that she was deprived of the use and control of her property for the period of time to which her complaint relates. We note the Government ’ s statement that they have fully satisfied the applicant ’ s claim for vacant possession of both houses with the result that from January 2009 she has been free to exercise freely all her rights as owner of the property, free of occupying tenants; and that these rights are fully and permanently restored in all respects enabling the applicant ’ s heirs and successors and any person claiming rights through her to exercise their rights over the property freely and fully. We also notte that the Attorney-General has undertaken initiatives to effect certain changes to Law no. 139/1991, namely Turkish Cypriot Properties (Administration and Other Matters) Law 1991. We further note that the Government offer to pay the applicant 427,150.36 euros (corresponding to 250,000 Cyprus pounds (CYP)) for pecuniary damage for loss of use of her property, 50,000 euros for non-pecuniary damage and 59,801.06 euros (corresponding to CYP 35,000) for costs and expenses and that these terms are put forward with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights , in which the applicant had principally invoked Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, as well as Article 14 of the Convention read separately or in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 with regard to the legal impediment placed on her enjoyment of her properties by Law no. 139/1991 .

Th e above sums, which are to cover any p ecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable to the applicant. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Having consulted our client, we would inform you that she accepts the proposal and waives any further claims against Cyprus in respect of the facts giving rise to this application. She declares that this constitute s the final resolution of the case. ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis Registrar President