THIRD SECTION

DECISION

Application no. 33981/96 by Kiamran HALIL against Cyprus

The European Court of Human Rights ( Third Section ) sitting on 7 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 October 1996 by Kiamran Halil against Cyprus and registered on 27 November 1996 under file no. 33981/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 20 March 1997 and the observations in reply submitted by the applicant on 7 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national. He was born in Paphos , Cyprus in 1923.

A. Particular circumstances of the case

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

The applicant is the registered owner of 2 out of 9 shares in a house and two shops in Larnaca , Cyprus (title deeds nos. Scala E709, E120 and E534). The remaining shares belong to his sisters.

The property in question was bought by the applicant’s mother in 1954. The applicant’s family lived in the house until 1957, when they moved to the Turkish quarter of Larnaca because of the inter-communal troubles.

The applicant contends that in 1958 his family rented the house to an elderly Armenian couple for a period of nine months. When the Armenians vacated the house the applicant’s family did not let it out again. The applicant also contends that his family used to rent out the two shops as well. However, the original tenants, who were not HS or AK (mentioned below), stopped paying rent following the inter-communal troubles of 1963. The last rent paid was 9 and 10 Cypriot pounds per month, respectively.

Until September 1964 the applicant, at the time a Cypriot national, was a district judge in Limassol . Then he left for the United Kingdom and has not visited Cyprus since. On 29 November 1966 the applicant acquired British citizenship. He claims that he has relinquished his Cypriot citizenship.

The applicant’s sisters moved to the northern part of Cyprus. The applicant claims that this happened in the 1960’s, while the Government contend that it happened following the events of 1974.

The Government state that, prior to 1974 and thereafter, the applicant’s house was being used by EM, while the shops were being used by HS and AK. The applicant denies this.

In 1975 the applicant’s house and shops were requisitioned.

On 11 September 1975 the Central Committee for the Administration of Turkish Cypriot Properties (hereinafter “the Committee”) concluded an agreement with AK, who is described as “not a refugee” in the relevant document, giving the latter licence to use one of the applicant’s shops for a year. According to the terms of the agreement, the licence could be renewed. It would expire automatically as soon as the requisition order stopped being in force or as soon as the Turkish Cypriot owner returned. The rent was fixed at 12 Cypriot pounds per month, the Committee reserving the right to modify it in the event of a renewal of the agreement.

In 1980 the applicant applied to the Ministry of the Interior for his property to be excluded from the requisition order. On 5 March 1980 the Ministry informed the applicant that his application remained pending and that their approach to the applicant’s problem was dictated by the need to protect abandoned properties and to use them in the public interest, especially for the alleviation of the needs of the refugees. Reference to the same considerations was made in a second letter sent to the applicant by the Ministry on 22 August 1980.

On 17 September 1980 the applicant lodged another application with the Cypriot authorities for the exclusion of his property from the requisition orders.

On 27 February 1981 a fresh agreement was concluded between the Committee and AK because the latter had been in arrears of rents. The effect of the agreement was retrospectively to reduce the rent to 10 Cypriot pounds per month for the period from 11 September 1975 to 31 December 1979. The rent as from 1 January 1980 was fixed at 12 Cypriot pounds per month again.

On 1 May 1986 the Committee concluded an agreement with HS, who is also described as “not a refugee” in the relevant document, giving the latter licence to use the applicant’s second shop for a year. According to the terms of the agreement, the licence could be renewed. It would expire automatically as soon as the requisition order stopped being in force or as soon as the Turkish Cypriot owner returned. The rent was fixed at 20 Cypriot pounds per month, the Committee reserving the right to modify it in the event of a renewal of the agreement.

On 21 November 1989 the Committee concluded an agreement with EM, who is described as “not a refugee” in the relevant document, giving the latter licence to use the applicant’s house for as long as the requisition order remained in force. The licence would expire automatically as soon as the requisition order stopped being in force or as soon as the Turkish Cypriot owner returned. The rent was fixed at 55 Cypriot pounds per month.

On 28 May 1990 the applicant informed the Attorney General that he had withdrawn his application of 17 September 1980 and asked for his intervention in the matter of his property. On 3 July 1990 the Attorney General referred the applicant to the Ministry of the Interior’s letters of 5 March 1980 and 22 August 1980, specifying that “since the co-owners of the properties were in the Turkish-occupied part of Cyprus, the properties remained requisitioned”.

On 19 February 1996 the applicant wrote to the Ministry of the Interior asking for his property to be excluded from the scope of application of the requisition orders, since he was a United Kingdom citizen and had been continuously out of Cyprus since 1964. On 12 April 1996 he sent a reminder.

The applicant claims that he became aware of the existence of the Turkish Cypriot Properties (Administration and other Matters) (Temporary Provisions) Law 1991 (Law no. 139/1991 - hereinafter the “1991 Law”) after 12 April 1996.

On 30 June 1996 the applicant, not having received a reply, wrote to the Minister claiming that both the requisition orders and the 1991 Law had been unlawfully applied to him. He claimed that, as a British national, he had ceased to be a Cypriot within the meaning of section 18 of the Courts of Justice Law 1960. As a result, he could not be considered a Turkish Cypriot for the purposes of the requisition orders and the 1991 Law.

The applicant asked for an account, mesne profits, loss of revenue from rents, compensation and vacant possession.

On 11 November 1996 the District Officer of the Ministry of the Interior for Larnaca , to whom the applicant’s letters had been transmitted, informed the Service for the Administration of Turkish Cypriot Properties that the applicant’s property was occupied by EM, HS and AK who were all statutory tenants, having been installed therein before 1974. They paid 55, 20 and 12 Cypriot pounds per month respectively.

On 21 November 1996 the Ministry wrote to the applicant “informing him that his property was being administered by the Minister of the Interior by virtue of the provisions of Law no. 139/1991”.

B. Relevant domestic law and practice

1. On 11 September 1975 the Government of Cyprus issued a requisition order under section 4 of the Requisition Law of 1962 and 1966 in respect of “all movable and immovable property, wherever situated, belonging to Turkish Cypriots and abandoned by them during their movement to the territories occupied by the Turkish army”. On 13 November 1975 a second order was made under the same provision in respect of “all movable and immovable property, wherever situated, belonging to Turkish Cypriots and not personally used by them”. These orders were renewed annually until 30 June 1991.

In Ciret v. Constantinides the District Court of Larnaca found that the above orders did not concern the property of a Turkish Cypriot who worked in the Cypriot Embassy in London because he had not left the island of Cyprus during or as a result of the events of 1974.

2. Law no. 139/1991 “containing temporary provisions concerning the administration of Turkish Cypriot properties in the Republic and other connected matters”, as amended by Laws 99(I)/1992, 35(I)/1994, 7(I)/1996 and 33(I)/1998, provides the following, as far as relevant:

“Because of the mass movement, as a result of the Turkish invasion, of the Turkish Cypriot population to areas under the occupation of the Turkish forces and the prohibition by these forces of the movement of this population in the territories of the Republic of Cyprus, properties consisting of movable and immovable goods have been abandoned,

And because the taking of immediate measures for the protection of the said properties had become indispensable,

And because the measures that have been taken included also the administration of the said properties by a Special Committee which has been set up by administrative arrangements;

And because the regulation by law of the matter of the Turkish Cypriot properties in the Republic has become necessary.

For all these reasons the House of Representatives enacts the following: ...

2. In this Law, unless a different meaning transpires from the context, ...

‘Guardian’ means the Minister who is appointed under section 3; ...

‘Turkish Cypriot Property’ includes any movable or immovable property that belongs to a Turkish Cypriot and is situated in an area under the control of the Republic and also includes Evcaf property;

‘Turkish Cypriot’ means a Turkish Cypriot who has not his ordinary abode in the territories under the control of the Republic and includes a company or other legal person which is owned by a Turkish Cypriot, as well as the Evcaf ;

‘Minister’ means the Minister of the Interior and includes his authorised representative.

3. The Minister is appointed under this Law Guardian of the Turkish Cypriot properties and administers them in accordance with the provisions of this Law and exercises the authority which is conferred on him under this Law while the emergency situation continues and until a final solution of the matter is attained.

4. (1) An Advisory Committee is established the purpose of which is to study and tender advice to the Guardian on any matter concerning the administration of Turkish Cypriot properties.

(2) The advisory Committee consists of the following persons:

(a) A representative of the Guardian as President;

(b) A representative of the Ministry of Finance;

(c) A representative of the Ministry of Agriculture and Natural Resources;

(d) A representative of the Pancyprian Committee of Refugees;

(e) A representative of the Union of Cypriot Farmers (PEK);

(f) A representative of the Cypriot Farmers (EKA);

(g) A representative of Agrotiki ;

(h) A representative of All-Farmers Syndicate;

( i ) A representative from each parliamentary party. ...

5. Without prejudice to the existence, on the date when this Law comes into effect, of rights of possession created in favour of third parties by virtue of legal relationships that existed on 20 July 1974 between themselves and the owners, on the appointment of the Guardian all Turkish Cypriot properties are vested in the Guardian who has the authority to take immediate possession thereof and to administer them in accordance with the provisions of this Law.

6. The Guardian has the following duties which he exercises with the assistance of civil servants:

(a) On taking possession of any Turkish Cypriot property, to administer it according to the circumstances of each case and for this purpose

( i ) To collect any amount due to the rightful owner and give the necessary receipts;

(ii) To collect and dispose of any produce of the said property in the most profitable manner for the owner;

(iii) To make the necessary payments in order to discharge obligations concerning the administration of the property;

(iv) To ensure the carrying out of necessary repairs and improvements of the property, its cultivation and sowing and, where necessary, such alterations to the property as would be for the benefit of the owner;

(v) To make arrangements, to conclude or terminate or annul contracts and to assume obligations or liabilities in connection with such property and, in particular, to hire the same under the most advantageous terms for the owner;

(vi) To sell or differently to dispose of any such movable property which is perishable or, because of its nature, ought to be sold or disposed of for the benefit of the owner;

(vii) Generally to do everything that is incidentally or necessarily involved in the administration of Turkish Cypriot properties. ...

9. The payment of sums owed to owners of Turkish Cypriot properties in connection with such properties is postponed as long as the emergency situation that subsists in the Republic owing to the Turkish occupation continues.

10. (1) An interested person who is not satisfied with a decision of the Guardian taken under the provisions of this Law and the regulations issued thereunder has the right to challenge this decision within thirty days from its communication to him by lodging an appeal in writing in which the grounds of appeal should be set out.

(2) An appeal made under the provisions of this section shall be addressed to the Ministerial Committee which will be established specially for this purpose and which will be composed of the Ministers of Finance, Justice and Agriculture and National Resources.

(3) The Ministerial Committee that has been established under the preceding subsection considers without undue delay the appeal submitted to it and, having heard the grounds of appeal or having given the appellant the opportunity to argue them, decides accordingly and communicates its decision to the appellant without delay.             

It is understood that the Ministerial Committee, prior to the delivery of its decision on the appeal, can entrust officials of its Ministries with the examination of matters that are included in the appeal and require them to submit to it the conclusions of this examination.

(4) The lodging of an appeal under this section suspends, until the delivery of the decision of the Ministerial Committee, the enforcement of the Guardian’s decision under challenge. ...

14. The provisions of the Rent Law do not apply in the case of Turkish Cypriot properties. ...

17. This Law shall enter into force on 1 July 1991 and shall remain in force until the Council of Ministers declares that it is not any longer in force by notification which shall be published in the Official Gazette of the Republic.”

In 1992 Muazzez Edhem Bahchecoglu and Isa Edhem , two Turkish Cypriots who owned immovable property in Limmassol and who had left Cyprus for England in 1962, sued the Government of Cyprus in the District Court of Limassol for trespass to their property in Limassol . They argued that their property had not been requisitioned and that the 1991 Law did not apply to their case; in the alternative, they argued that the 1991 Law was unconstitutional. On 29 September 1995 the District Court considered that the property had not been requisitioned and that the 1991 Law did not apply to the two Turkish Cypriots’ case on the ground that it had not been proved that “they had abandoned this property as a result of the Turkish invasion of 1974”. To reach this conclusion the court used the preamble of the law to interpret its provisions. Moreover, the court awarded the two Turkish Cypriots 250,000 Cypriot pounds for damages.

The Attorney General appealed against the judgment of the District Court to the Supreme Court arguing, inter alia, that the case should have been introduced before the Supreme Court directly. This ground of appeal was subsequently withdrawn.

On 27 February 1998 the Supreme Court found that the terms of the provisions of the 1991 Law were clear and, as a result, the District Court should not have used the preamble. It also considered that, according to the clear terms of the statute, the 1991 Law applied to the case of the two Turkish Cypriots because “their place of abode was not in the territory controlled by the Government of the Republic of Cyprus”. The Supreme Court also disagreed with the manner in which the lower court had assessed the plaintiffs’ compensation for the pre-1991 period. It sent the case back to the District Court for the latter to pronounce on the constitutionality of the 1991 Law and to re-assess the Turkish Cypriots’ compensation for the period until the entry into force of this law.

As of 16 June 1999 the case had still not been re-heard by the District Court.

3. In the Attorney-General v. Mustafa Imbrahim and others case the Supreme Court examined the constitutionality of the Administration of Justice (Miscellaneous Provisions) Law which had been enacted in 1964 as a result of events which had “rendered impossible the functioning of the Supreme Constitutional Court and of the High Court of Justice and the administration of justice in some other respects”. In the light of the principles of law of necessity as applied in other countries and having regard to the provisions of the Constitution, the Supreme Court considered that the Constitution included in exceptional circumstances the doctrine of necessity, which introduced implied exceptions to particular provisions of the Constitution, in order to ensure the very existence of the State. The Supreme Court, accordingly, decided that the 1964 Law had been validly enacted and was within the framework of the Constitution. Therefore, the courts created by that law operated under the provisions of the Constitution.

COMPLAINTS

1. The applicant originally complained under Article 1 of Protocol No. 1 on its own and in conjunction with Article 14 of the Convention that the requisition orders and the 1991 Law were unlawfully applied to him because, being a British citizen, he cannot be considered as a Turkish Cypriot for the purposes of these instruments. Alternatively, the applicant submitted that the 1991 Law failed to strike a proper balance between the protection of private property rights and the public interest. He stressed the indefinite duration of this law, its failure to exclude foreigners from its scope of application and its retroactive effects.

2. The applicant also complained under Article 6 of the Convention that he did not have an effective remedy for the violation of his right to the peaceful enjoyment of his possessions, because the 1991 Law excluded the jurisdiction of the courts. In any event, he argued that, since the events of 1974 and insofar as Turkish Cypriots are concerned, the courts of the Republic of Cyprus have ceased to be courts of competent jurisdiction as provided by the Courts of Justice Law 1960 and the Constitution of Cyprus, because, contrary to the provisions of these instruments, they are exclusively composed of Greek Cypriot judges.

3. Finally, the applicant complained under Article 8 of the Convention that he did not receive a prompt reply by the authorities to his letters of 19 February 1996 and 30 June 1996.

PROCEDURE

The application was introduced on 14 October 1996 and registered on 27 November 1996.

On 23 January 1997 the European Commission of Human Rights decided to communicate the application. The Government’s written observations were submitted on 20 March 1997. The applicant replied on 7 May 1997.

On 4 June 1997 and 13 June 1997 the Government furnished supplementary information. The applicant commented thereon on 21 June 1997 and 17 July 1997.

On 17 July 1997 the Rapporteur of the Commission requested the Government to submit further information.

The Government replied on 30 September 1997 and the applicant commented on that reply on 7 November 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 23 February 1999 the Court decided to request further information, to which the Government replied on 15 March 1999 and the applicant commented on 20 April 1999.

On 11 May 1999 the Court decided to request additional information, to which the Government replied on 14 June 1999 and the applicant commented on 5 July 1999.

On 6 August 1999 the Government made a number of further comments to which the applicant replied on 20 September 1999.

On 28 September 1999 the Court decided to obtain the parties’ oral submissions on the admissibility and merits of the application.

On 3 November 1999 the Government informed the Court that at a meeting of the parties on 9 October 1999 a friendly settlement had been reached “in full and final satisfaction of all the applicant’s claims set out in the application inclusive of all other claims relating to all the applicant’s properties situated in Paphos in respect of which he had not as yet filed an application with the Court”.

On 15 November 1999 the applicant confirmed the information provided by the Government and informed the Court that he did not intend to pursue the application.

THE LAW

The Court notes that there has been a settlement between the parties and that the applicant does not intend to pursue his application. Moreover, the Court considers that respect for Human Rights as defined in the Convention does not require it to continue with the examination of the application.

It follows that the application may be struck off the list of cases pursuant to Article 37 § 1 (a) of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES .

S. Dollé N. Bratza Registrar President