THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44730/98 by Loukia SERGHIDES ET AL and Others against Cyprus

The European Court of Human Rights ( Third Section) , sitting on 22 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Mr P. Kūris , Mrs F. Tulkens , Mrs H.S. Greve , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 July 1998 and registered on 30 November 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having deliberated, decides as follows:

THE FACTS

The applicants are Cypriot citizens, born in 1934 and 1958 respectively, and residing in Nicosia. They are represented before the Court by Mr G.L. Savvides, a lawyer practising in Limassol.

A. The circumstances of the case

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

In 1959, the first applicant acquired freehold ownership of plot 565, Nicosia, with a frontage on Jason Street, which is now called Georgios Grivas Digenis Avenue. She was also issued with a Certificate of Registration of Immovable Property by the Land Registry Office, Registration No. B662, dated 28 April 1959. The surface area of plot 565 was 23,488 square feet. On 16 September 1959 the first applicant leased plot 565 to Mobil Oil Cyprus Ltd. On 7 October 1959 Mobil, in its capacity as the representative of the first applicant, applied to the municipality of Nicosia and obtained a building permit for the construction of a petrol-station, a car-wash and other ancillary structures. In 1969 the lease was renewed until September 1973, with the option to extend until September 1977. In paragraph 1 of the third page of the lease, the rented property was described as “property situated at Grivas Digenis Avenue on plot 565”. Paragraph 5(e) of the lease provided that the landlord authorised the tenant as her agent to sign all applications concerning the plants and works Mobil would construct, reconstruct, operate and continue to operate on the plot, and generally do all things necessary on her behalf.

On 30 March 1973, Notice No. 612 was published in the Official Gazette of the Republic No. 1002, pursuant to the Streets and Buildings Regulation Law, Cap. 96, by the Municipal Committee of Nicosia, aimed at widening Grivas Digenis Avenue.

According to the text of paragraph 1 of the Notice, the affected plots were the following: all plots with frontage on a certain specified part of the Avenue (that is, the part of the Avenue between Prodromos street and Th. Dervis street) and certain plots with frontage on both the Avenue and other side roads. (The numbers of these “corner plots” were expressly set out in the Notice.)

However, the Notice did not mention that plot 565 was part of the land taken for the widening of the street.

The Notice provided that any objection against the widening scheme should be raised within seventy-five days of the publication of the Notice in the Official Gazette.

On 11 July 1973, Mobil filed with the Municipality an application for a building permit to make minor alterations to a station built in 1959, the pumps’ shelter and an oil ditch. The distance of the new construction from the newly aligned Grivas Digenis Avenue was more than 10 feet, the distance required by Regulation 6(3) of the Streets and Buildings Regulations.

Upon receipt of the application, the Municipality addressed to the first applicant, through her duly authorised agent, a letter dated 24 July 1973. It was expressly provided in that letter that the plans of the street-widening scheme relating to the Grivas Digenis Avenue should be taken into account. A copy of the official plan which showed the effect of the street-widening scheme was attached to the letter.

According to the Government neither the first applicant nor Mobil protested.

On 27 March 1978 the building permit was issued. By letter of 28 March 1978, the Municipality of Nicosia requested the Office of the Land Registry and Survey to register as part of the public domain, by virtue of section 13 (1) of the Streets and Buildings Regulation Law, Cap. 96, the part of plot 565 affected by the street-widening scheme. At some time between 1978 and 1979, the District Land Registry Office of Nicosia registered the disputed area of 2,060 square feet as part of Grivas Digenis Avenue.

According to the applicants, the Government Survey Plan and the title of the first applicant were amended without anyone notifying her. In the Land Register, the ceding of the disputed area to the road was described as follows : “By purchase from the Government after compulsory acquisition + By grant. A public road. Fees: gratis”. The applicant alleges that she was never notified about this amendment of the Register which contains a false declaration. Moreover, Mobil was never notified, as no mention of the expropriation was made in the conditions attached to the building permit which had been granted. Even the letter sent to Mobil on 24 July 1973 only stated that the street-widening scheme would be taken into consideration, thus giving no indication that the disputed area would be compulsorily ceded to the road.

Although the street-widening plan was made in 1978, the actual widening was not effected until September 1989. On 5 September 1989 Notice of Acquisition No. 1391 was published in Gazette No. 2439. Again, however, the applicant’s plot did not appear to be affected. According to the Government, this was due to the fact that the part of the plot affected by the street-widening scheme had already become part of the street through the earlier procedure, pursuant to sections 12 and 13 of the Streets and Buildings Regulation Law, Cap. 96.

The applicant claims that the first time she became aware of the situation was after receiving on 4 September 1989 a Government Survey Plan which she had requested from the Land Registry for the purpose of filing an objection to taxes imposed on some of her immovable property.

As the original 1959 registration certificate for plot 565 was lost, the applicants requested a further official copy, which they received on 30 December 1992. However, the certificate had been changed in relation to the surface area of the plot and contained the declaration - “Mode of Acquisition: By virtue of purchase by the Government after Compulsory Acquisition and by virtue of cession to the public road”.

On 17 November 1989 the first applicant lodged an application with the Supreme Court of Cyprus, sitting at first instance, against both the Municipality of Nicosia and the Republic. She asked the court to declare the Land Registry’s Office decision to take away 2,060 square feet of her land, as well as the decision to declare that piece of land to be part of a public road, void and without any legal effect. The applicant invoked Article 23 (2) and (4) of the Constitution (see Relevant Law below).

On 22 January 1990 the application was fixed for directions before the Supreme Court on 16 March 1990. On 23 January 1990 the Republic filed its opposition. On 16 March 1990 the court directed the Municipality to file its opposition by 23 April 1990. On that date as well as on 15 May 1990 and 11 June 1990, the Municipality applied for consecutive extensions. The applicant’s lawyer stated on each occasion that he did not object. On 20 June 1990 the Municipality filed its opposition. On 19 September 1990 the applicant filed her observations. On 6 December 1990 and 8 February 1991 the Republic and the Municipality applied for an extension of the time-limit for filing their observations in reply. These observations were filed on 14 April 1991 and 8 May 1991. On 12 June 1991 and 13 September 1991 the applicant'’ lawyer was granted two further extensions for submitting additional observations.

On 22 January 1992 the Supreme Court reserved its decision, which was not rendered until 2 February 1993.

On 8 December 1992 the first applicant transferred the ownership of plot 565 to her children by way of donation. According to the relevant Declaration of Transfer submitted by the Government, the first applicant transferred the totality of her legal title in plot 565 without any reservation whatsoever. This fact was not brought to the knowledge of the Supreme Court by the first applicant.

According to the applicant, as she was seriously ill, she transferred the ownership of 21,428 square feet of land out of the total 23,488 square feet which she had originally held in 1959, with a half share to each to her two children - the second applicant and Dr G.A. Serghides. The remaining 2,060 square feet which she did not transfer is the disputed area. The entry of this transfer in the Land Registry Office appears to have been made on 23 February 1993.

On 2 February 1993, the Supreme Court rejected the application as out of time, it having been filed more than seventy-five days after Notice No. 612 had been published in the Official Gazette. It held that the letter of 24 July 1973 to Mobil from the Municipality constituted sufficient notice. It further held that the acts and/or actions of the Municipality of Nicosia and the Republic of Cyprus as regards the expropriation of 2060 square feet of the applicant’s land were not executory administrative acts, and thus could not be annulled by virtue of Article 146 of the Constitution. It concluded that the street-widening scheme did not amount to a deprivation of property but only to a restriction on property having regard to the total surface area of the property and the affected land.

On 9 March 1993, the first applicant filed an appeal on points of law with the Supreme Court.

On 5 September 1996 the parties were notified by the Registrar that the appeal was fixed for hearing on 12 December 1996. On that date the lawyer for the Municipality applied for an adjournment of the hearing, to which the applicant’s lawyer did not object. On 20 January 1997 the Supreme Court adjourned the hearing for want of time. On 3 April 1997 the hearing commenced but was not completed. On 15 May 1997 then on 1 July 1997 the hearing was further adjourned upon applications made by the lawyers of the applicant and the Municipality respectively. The hearing was completed on 10 September 1997 and judgment was reserved.

On 27 February 1998 the Supreme Court dismissed the appeal on a procedural point, without examining the merits of the case. It held that, as the first applicant had transferred her property, she no longer had locus standi in respect of the land taken by the Municipality in 1978.

In neither of the procedures before the Supreme Court did the first applicant ever contend that she had had no notice of the publication of the street-widening scheme that affected her property.

B. Relevant domestic law

1. The Constitution

The relevant Articles of the Constitution provide as follows:

Article 23

“(1) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved.

(2) No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.

(3) Restrictions or limitations which are absolutely necessary in the interests of  public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right.

Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court.

(4) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a commune for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only

(a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution;

(b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition;

(c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.”

Article 35

“The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this part.”

Article 146

“(1) The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a claim made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such an organ or authority or person.

(2) Such a claim may be made by a person whose existing legitimate interest, which he has either as a person or by virtue of being a member of a community, is adversely and directly affected by such a decision or act or omission.

(3) Such a claim shall be made within seventy-five days of the date when the decision or act was published or not published and in case of an omission, when it came to the knowledge of the claimant .”

2. The Streets and Buildings Regulation Law, Cap. 96 (as amended)

The relevant Sections of this law provide as follows:

Section 2

“In this Law

alteration, addition or repair, when used with reference to buildings, means any structural alteration, addition or repair whereby any dimension of such building is altered …

building means any construction, whether of stone, concrete, mud, iron, wood or other material and includes any pit, foundation, wall, roof, chimney, veranda, balcony, cornice or projection or part of a building, or anything affixed thereto, or any wall, earth bank, fence, paling or other construction enclosing or delimiting or intended to enclose or delimit any land or space.”

Section 3 § 1

“No person shall

(a) lay out or construct a street;

(b) erect, or suffer or allow to be erected a building or demolish or reconstruct or make any alteration, addition or repair to any existing building, or suffer or allow any such demolition or construction or any such alteration, addition or repair to be made;

(c) lay out or divide any land… into separate sites,

(d) divide any building … into separate tenements;

(e) start to do any of works or matters herein-before set out

without a permit first obtained from the appropriate authority as provided in subsection (2).”

Section 12

“(1) Notwithstanding any provision contained in this Law, a competent authority may, with the object of widening or straightening any street, prepare or have prepared plans showing the width of such a street and the direction that it shall take.

(2) When any plans have been prepared under subsection (1), the competent authority shall deposit such plans in its office and shall also have a notice published in the Gazette and in one or more local newspapers and deposited in its office, open to inspection by the public at all reasonable times, for a period of seventy-five days from the date of the publication of the notice in the Gazette.

(3) At the expiry of the period set out in subsection (2), the plans shall, subject to any decision of the Supreme Court after a claim is filed as provided for in section 18 of this law, become binding on the competent authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans.”

Section 13

“(1) Where a permit is granted by a competent authority and such permit entails the new alignment of any street, in accordance with any plan which has become binding under section 12 of this law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of that street without the payment by the authority of any compensation whatsoever:

If it is established that hardship would be caused if no compensation would be paid, the authority shall pay such compensation as may be reasonable having regard to all the circumstances of the case.

(2) When a permit is granted under subsection (1), the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remains unaltered.”

On 25 June 1976 the Supreme Court held that section 12 of the Streets and Buildings Regulation Law, Cap. 96, was not contrary to Article 23 of the Constitution, because it resulted only in the imposition of restrictions or limitations on the right of property and, particularly, on the use of such property for the purposes of building development, which were absolutely necessary in the interests of town and country planning within the meaning of Article 23 (3) of the Constitution (Neophytos Sofroniou and Others v. the Municipalty of Nicosia and Others judgment of 25 June 1975).

By a judgment of 23 May 1997 in the case of Kyprianides and Others v. the Municipality of Nicosia, the Supreme Court ruled that no claim for damages could be introduced when the disputed area was less than 15% of the original area. This judgment was subsequently confirmed in the case of the Attorney General v. F. Iacovides (Civil Appeal No. 9965, judgment of 29 September 1998).

As regards section 12(3), the Government affirm that the publication of such a scheme does not result in the acquisition by the competent authority of the part of the property affected thereby. It merely imposes restrictions and limitations upon future plans for the development of such property. If an application is made for the issue of a building permit in relation to such property, the permit must be in accordance with the plans of the street ‑ widening scheme. The provisions of section 13 come into play in the event of the issue of a building permit. Then the affected part of the property becomes part of the street.

The Government contend that it follows that in the present case the alleged expropriation of 2,060 square feet of the applicant’s land was not brought about by any administrative act or decision of the competent authority but by operation of law. The relevant statutory provisions operated automatically as soon as the building permit was issued, that is on 27 March 1978. The procedure that followed for the registration of the area was not an executory administrative act but merely an act of implementation because the said area had already become part of the street on the date on which the permit was issued.

3. The Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 (as amended)

The relevant sections of this Law provide as follows:

Section 2

“In the present Law ‘owner’ means the person entitled to be registered as the owner of any immovable property whether he is actually registered or not.”

Section 40 § 2

“No transfer or voluntary charge affecting any immovable property shall be made in the District Lands Office by any person unless he is the registered owner of such property …”

Section 50

“The area of land covered by a registration of title to immovable property shall be the area of the plot to which the registration relates in any Government Survey Plan or any plan made to scale by the Director:

Provided that where the registration cannot be related to any such plan, the area of land concerned shall be that to which the holder of the title may be entitled by adverse possession, purchase or inheritance.”

Section 56

“From and after the date of the coming into operation of this Law, every registration made and every certificate issued in connection with any transfer of land or building, or any devolution thereof by inheritance, shall be deemed to include all immovable property connected therewith to which the transferor or deceased was entitled.”

4. Law (No. 15 of 1962) on the compulsory acquisition of property for public benefit purposes

Section 4 of this law provides as follows:

“Where any property is required to be compulsorily acquired for the purpose of a public benefit, the acquiring authority shall cause a notice of the intended acquisition in the form set out in the Schedule hereto ... to be published in the official Gazette of the Republic, containing a description of the property intended to be acquired, stating clearly the purpose for which it is required and the reasons for the acquisition, and calling upon any person interested in such property to submit to such authority within a specified time, being not less than two weeks from the date of the publication thereof, any objection which he may wish to raise to such acquisition ...”

COMPLAINTS

1. The first applicant complains, under Article 6 § 1 of the Convention, of the unfairness and length of the proceedings before the Supreme Court.

2. The first applicant also alleges a violation of Article 1 of Protocol No. 1.

3. The second applicant complains that, on the locus standi question, the Supreme Court should not have dismissed first applicant’s appeal on points of law, but should have given the second applicant the right to intervene in the proceedings. By not doing so, the Supreme violated both Article 6 of the Convention and Article 1 of Protocol No. 1.

THE LAW

A. As regards the first applicant

1. The first applicant alleges a violation of Article 1 of Protocol No. 1 which reads as follows:

“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 maintains that the Republic deprived her of 2,060 square meters of her land:

a) without following the conditions for compulsory expropriation provided for by Article 23(2) and (4) of the Cyprus Constitution and the relevant provisions of Compulsory Acquisition Law 15/1962;

b) without complying with the principle of proportionality because it did not pay any compensation for the expropriation;

c) without giving her notice of the deprivation and of the subsequent change of her title deed, the Land Register and the Government Survey Plan; and

d) by changing her title deed and falsely declaring the expropriation to be a “compulsory acquisition … by virtue of cession to the road”.

Moreover, the Republic to date continues to deprive her of the expropriated part of her land and prevents her from peacefully enjoying it as an owner.

The applicant further alleges that section 13 of the Streets and Buildings Regulation Law, Cap. 96, (hereafter “Cap 96”) contravenes Article 1 of Protocol No. 1. She also submits that the decision of the Supreme Court, sitting as an appeal court and holding that she had no locus standi regarding the disputed land (which she had not transferred to her children), constituted a further violation of that Article, aggravated by the fact that the Supreme Court refused to examine the merits of the case. Finally, she claims that by deciding that section 13 was applicable to her property with the effect of merely limiting rather than depriving her of her rights, the Supreme Court, sitting as a first instance court, further violated Article 1 of Protocol No. 1.

(a) The preliminary objection as to the incompatibility ratione temporis with the provisions of the Convention

In the first place, the Government invite the Court to declare the complaint under Article 1 of Protocol No.1 incompatible ratione temporis with the provisions of the Convention. They emphasise that in their declaration made pursuant to former Article 25 of the Convention, they affirmed that they recognised “the competence of the European Commission of Human Rights to receive petitions…in relation to any act or decision occurring or any facts or events arising subsequently to 31 December 1988…”. They do not deny that the proceedings complained of in this application commenced after 31 December 1988. However, all the events which constitute the factual background to the application arose prior to that date. It is clear that the affected part of plot 565 became part of a street by operation of Cap 96 on 27 March 1978.

The applicant maintains that she discovered that she had been deprived of her property accidentally and many years after the events. The authorities failed to notify her of the fact that her plot was included in the street-widening scheme; they did not even mention the plot number of her land or her name in the Official Gazette. They also failed to notify her or her tenant, Mobil Oil, of the deprivation. Neither in 1978 nor in 1979, when the applicant’s title was changed, was she informed. Her plot did not even appear in the Notice of Acquisition No. 1391 published in Gazette No. 2439 of 8 September 1989. The applicant contends that she did not raise before the Supreme Court the fact that she had no notice of the publication of the street-widening scheme, because section 13 of Cap 96 applied in her case since the distance of the alterations made by Mobil from the newly aligned Grivas Digenis Avenue was more than 10 feet. Finally, she claims that the deprivation of her property has been continuous since 1978.

The Court notes that the applicant only became aware of the alleged expropriation of her property accidentally in 1989, whereupon she launched proceedings in an attempt to rectify the matter. These are elements which are indissociable from the earlier events prior to the recognition by Cyprus of the right of individual petition in 1988. In these circumstances, the Court considers that the applicant’s claims cannot be dismissed as being incompatible ratione temporis. Accordingly, the Government’s first objection is rejected.

(b) The preliminary objection as to non-exhaustion of domestic remedies

The Government next submit that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The publication of the street-widening scheme in 1973 imposed a restriction on the first applicant’s property: 11% of her plot of land could not be used for development. However, she never put forward a claim for compensation, nor did she bring a civil action before the competent civil courts by virtue of Article 23(3) of the Constitution. At no time did she attempt to set in motion the machinery laid down in section 13(1) of Cap. 96. Such a civil action would have been successful if the provisions of Article 23(3) were met, irrespective of the fact that the provisions of section 13(1) might not have been satisfied. As no prescription periods exist in relation to civil claims of this nature, any action for compensation that the applicant might have brought against the competent authority would not have been time-barred.

The applicant contends that in the Land Register the Republic described the transfer of her property as a “grant … fees: gratis”, without even asking her whether she wanted to be such a donor. The applicant maintains that she did not seek compensation under section 13 § 1 of Cap. 96 and Article 23(3) of the Constitution, because she considered that the disputed measure amounted to a deprivation of property and not a restriction of use. The applicant seeks “just compensation” as provided by Article 23 § 4(c) of the Constitution, and not compensation for hardship, as provided by section 13 of Cap. 96. Even if one considers the expropriation as a limitation, after the decision of the Supreme Court in the case of Kyprianides and Others v. Municipality of Nicosia, any action before the Cyprus courts on this basis was bound to fail, since the disputed area was less than 15% (only 11.40%) of the total area of the applicant’s original plot.

The Court notes that the applicant did not apply to the courts for compensation in respect of an allegedly illegal deprivation of property. However, the Court also notes that, in view of the Supreme Court’s case-law referred to by the applicant, such a petition was indeed bound to fail.

In these circumstances, the Government’s second objection is dismissed.

(c) As to the merits

The Government maintain that the applicant was not deprived of her property within the meaning of Article 1 of Protocol No. 1. The interference in question amounted to a measure of control of the use of property. The legal effect of the publication of the street-widening scheme was merely to impose a restriction upon any future development of plot 565. The restriction could only take effect if and when the applicant applied for a permit for the development of that plot. In such a case, the development would not be unfettered; the affected part of the plot would become part of the street. The restriction in question was imposed by the Streets and Buildings Regulation Law, Cap.96, which at the material time was the key legislation controlling town planning and the development of immovable property. The street-widening scheme was enforced pursuant to the provisions of section 12 of Cap 96 in the public interest, namely the improvement of the existing road network. At the time, Grivas Digenis Avenue was becoming one of the most central streets of Nicosia. In assessing the proportionality of the interference, the Government recall that Article 23(3) of the Constitution provides for the payment of just compensation for any restriction or limitation which materially decreases the economic value of property. However, the applicant never applied for such compensation.

The applicant submits that she has been deprived of her property. The expropriation of property is always a deprivation whether the portion taken is small or large, and irrespective of its value. The Government confuse the part taken, which they ignore, and the remainder of the property. The competent authorities divested the applicant of her title without following the normal procedure for compulsory acquisition, without informing her of what happened and by making false declarations as regards her title (certificate of registration) and the Land Register. Street-widening schemes are made for public purposes and in the general interest, but this does not justify a deprivation of land other than by the legal means provided for in Article 23(4) (a), (b) and (c) of the Constitution and the Compulsory Acquisition Law 1962.

Section 13 of Cap. 96 provides a machinery which is completely different from a procedure of compulsory acquisition and which amounts to a direct and automatic expropriation without compensation because a permit is being given. The permit is used as an excuse to facilitate the street ‑ widening scheme without the public authorities paying compensation to the owners of the property. The fact that a permit is needed to activate the procedure cannot change the nature of the measure. The threat contained in section 13 prohibits the owner from doing anything with his land unless he transfers that part of the land affected by the street-widening scheme. Although expropriation under section 13 is effected automatically on the grant of a building permit, the street-widening scheme may never be implemented, but Cap. 96 does not provide for the return of the property taken, whereas Article 23 § 5 of the Constitution does foresee the return of unused property compulsorily acquired.

Furthermore, the applicant contends that the principle of proportionality has not been respected. The value of the land taken was many times higher than the value of the minor building alterations made by Mobil Oil to the applicant’s property. The latter construction was not the permanent development of the land for the applicant and her children. What was built on the applicant’s plot by Mobil was only a fraction of what could have been built under the laws and regulations existing at that time.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The first applicant also alleges a double violation of Article 6 § 1 of the Convention which, as far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...”

The applicant submits that there has been a violation of her right of access to court because she was not given any notice of the expropriation. The decision of the Supreme Court to dismiss her appeal on the ground of the loss of locus standi (without examining the merits of the case) merely because she had exercised her constitutional right to donate the remainder of her property to her children, deprived her of any remedy to challenge the lawfulness of the deprivation of her property. The unreasonable delay in the delivery of the judgment of the Supreme Court, sitting as a first instance court, and the continuous, unlawful omission of the Republic (since 1978) to notify her of the expropriation are factors which, if they had not existed, would not have given rise to the issue of any loss of locus standi .

Furthermore, by dismissing the applicant’s appeal on the ground that the acts of the Municipality and the Republic were not executory acts and by establishing case-law to the effect that section 12 of Cap. 96 does not amount to a deprivation of property (above-mentioned judgment in the case of Neophytos Sofroniou and Others v. the Municipality of Nicosia and Others), the Supreme Court denied the applicant the right to challenge the legality of the deprivation of her land.

(a) The preliminary objection as the applicability of Article 6 § 1 of the Convention

In the first place, the Government contend that Article 6 § 1 does not apply in the present case because the proceedings before the Supreme Court did not involve the determination of the applicant’s civil rights within the meaning of this provision. These proceedings did not and could not have any legal consequences for the property rights of the first applicant. The object of the proceedings brought by the applicant was the annulment of the revised registration of part of plot 565 in the name of the Municipality. However, even if she had succeeded in her application and the registration had been annulled, there would have been no legal consequences in ownership, because this portion of her land had already become part of the street by operation of the law on the issue of permits, and legal ownership therein was by no means contingent upon subsequent registration. Furthermore, the exercise by the first applicant of any right she possessed under domestic law to claim compensation was in no way related to the outcome of the proceedings before the Supreme Court; any such claim could have been independently brought before a competent civil court. An additional reason why Article 6 § 1 does not apply to the proceedings is the fact that, both at first instance and on appeal, the application was dismissed on procedural grounds.

The applicant submits that if the Supreme Court had found that section 13 had been misinterpreted and wrongly applied by the authorities, or that the said section was contrary to Article 23(2) and (4) of the Constitution, then the Supreme Court would have declared null the acts of the authorities. Thus, the applicant could have applied to have the disputed area registered in her name under the Immovable Property Law of 1946. She could also have claimed damages or compensation for the continuation of the illegal deprivation of the disputed area. As to the argument about the procedural rejection, the applicant contends that, had the decision of the Supreme Court been different on the substance, the application could not have been dismissed on grounds which the Government consider “procedural”.

The Court recalls that Article 6 § 1 of the Convention extends to “ contestations ” (disputes) over civil rights which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention.

These conditions are satisfied in the present case. In bringing an action before the Supreme Court, the applicant claimed essentially that she had been deprived of her property without compensation and contrary to Article 23(2) of the Constitution. Had the Supreme Court declared void and without legal effect the decision to integrate the plot as part of the road, the applicant could have applied for damages. Although the Supreme Court held that the applicant had no locus standi , in effect it determined a civil dispute.

Accordingly, the Court finds that Article 6 § 1 of the Convention is applicable in this case.

(b) Length of proceedings

As regards the length of proceedings, the Government recall that the proceedings before the Supreme Court, sitting as a first instance court, were completed within two years and two months (17 November 1989 - 22 January 1992). All the adjournments were requested by the parties. Some of them were asked for by the lawyer of the first applicant. Requests for adjournments made by the lawyers of the Municipality and the Republic never met with any objection from the applicant’s lawyer.

The decision of the Supreme Court was issued 12 months after it had been reserved. However, the applicant made no attempt to set in motion the mechanism provided for in Regulations 3 and 5 of the Procedural Regulations for the Prompt Issue of Court Judgments of 1986: by 22 July 1992 (i.e. 5 months before the transfer of plot 565 to her children), the applicant could have invited the Full Bench of the Supreme Court to make an order for the issue of the reserved judgment by a specific date (Regulation 5(b)).

Before the Supreme Court, sitting on appeal, the hearing was fixed for 12 December 1996 (i.e. 3 years and 9 months after the filing of the appeal) on the initiative of the Registrar and upon the persistent failure of the applicant to ask for the hearing to be fixed. This hearing was adjourned three times: once at the request of the lawyer for the Municipality with the consent of the applicant’s lawyer, once at the request of the applicant and once of the court’s own motion. These proceedings were completed within 9 months (12 December 1996 - 10 September 1997) and the judgment was delivered 5 months after it had been reserved.

The applicant maintains that the length of the proceedings was due mainly to the conduct of the Supreme Court. Before the Supreme Court, sitting as a first instance court, the application was filed on 17 November 1989 and fixed for directions on 16 March 1990 (and not on 16 March 1989, as stated inadvertently by the Government). The case was postponed continuously to allow the Municipality to file its written opposition. The written opposition of the Republic was filed on 23 January 1990 and the written opposition of the Municipality on 20 June 1990, despite the 21 day deadline from the day of service of the application (Regulation 5(1) of the Supreme Constitutional Court Rules). Though the written address of the applicant was filed on 19 September 1990, the written address of the Municipality was filed on 14 April 1991 and that of the Republic on 8 May 1991. The case was postponed for these purposes four times. Judgment was reserved on 22 January 1992 and issued over a year later on 2 February 1993. However, according to Regulation 4 of Procedural regulations for the Prompt Issue of Court Judgments: “If a decision which has been reserved … continues to be reserved for a period which exceeds nine months, the case is ipso jure fixed before the Supreme Court for the delivery of the order which is necessary in the circumstances, pursuant to paragraph 5 of the Regulation.”

The applicant points out that before the Supreme Court, sitting as an appeal court, the appeal was filed on 9 March 1993 and not, as wrongly stated by the Government, on 9 March 1994. The hearing was fixed on 12 December 1996 and eventually commenced on 3 April 1997. On 12 December 1996 the Municipality asked for an adjournment and on 20 January 1997 the court decided to discontinue the hearing in order to deal with two other cases. On 1 and 9 July 1997 the hearing was again adjourned at the request of the Municipality.

The Court considers, in the light of the parties’ submissions, that the applicant’s length complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(c) Access to court

As regards the right of access to court, the Government contend that there has been no violation of this right, because the factual situation is different from that in the case of De Geouffre de la Pradelle v. France (judgment of 16 December 1992, Series A n° 253-B). In the present case the applicant was aware of the provisions of the street-widening scheme upon its publication in the Official Gazette; she was notified of the fact that the building permit could only be issued in accordance with the requirements of the street-widening scheme and she failed to challenge the acts of the public authorities. As to the question of locus standi , the Government submit that, even if the requirements under domestic law impose a limitation on the right of access, such limitation is reasonable and pursues a legitimate aim: the smooth operation of public administration. On 8 December 1992 the applicant did not transfer 21,428 square feet of land. She transferred her entire legal title in plot 565. This is why she had no longer had an interest in the proceedings.

The applicant reiterates that she was given no notice of the intended acquisition of part of her plot, although other owners on the same avenue were given proper notice. As to the argument that the acts of the authorities were not executory, this is contrary to section 13 § 2 of Cap 96 which provides that the revised registration shall be deemed final when the District Land Office proceeds with the necessary amendments to the relevant registrations.

As to the loss of locus standi, the applicant submits that she could not be considered to have lost her legal interest by the transfer of the remainder of her property to her children because she could not and did not transfer property of which she was not the registered owner. Even if the Supreme Court was right in saying that the first applicant had lost her locus standi , it should not have dismissed the appeal without giving the second applicant the opportunity to intervene in the proceedings. As a result of the decision of the Supreme Court, neither the old nor the new owners of the remainder of the plot could have had a right to participate in a hearing determining ownership rights. However, the Supreme Court held that for a party to have locus standi it must have a legitimate interest at all relevant times: at the time the disputed act was effected, at the time of filing the application and at the time of its adjudication. Finally, had the applicant been informed about the deprivation 22 years ago when it occurred (1978 to 1979), the question of its legality would have been settled many years earlier, without the fate of the applicant’s appeal being affected by the transfer of the applicant’s property to her children on 8 December 1992.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. As regards the second applicant

The second applicant maintains that the Supreme Court should not have dismissed the first applicant’s appeal but should have merely allowed her to become an additional party. She alleges a violation of Article 1 of Protocol No. 1 because she has been prevented from asserting her right to the property appropriated by the State, and of Article 6 § 1 of the Convention because she was deprived of her right of access to court.

As to the second applicant’s complaint under Article 6 § 1, the Court considers that there has been no breach of the right of access since she was never a party to the proceedings and she never attempted to lodge any application with the Cypriot courts. In the opinion of the Court, the second applicant cannot complain under Article 6 § 1 that the Supreme Court did not invite her to intervene in the proceedings brought by her mother. Moreover, as to the second applicant’s complaint under Article 1 of Protocol No. 1, the Court considers that it is wholly unfounded as it transpires from the case-file that the disputed property was never actually transferred to the second applicant. She has therefore no property right at issue here.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the first applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President