Information Note on the Court’s case-law 34

September 2001

Selim v. Cyprus (dec.) - 47293/99

Decision 18.9.2001 [Section III]

Article 12

Impossibility for Muslim Turkish Cypriot living in Cyprus to contract a civil marriage: admissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Constitutional appeal to the Supreme Court to contest section 34 of Marriag e Law as regards civil marriages of Muslim Turkish Cypriots

The applicant is a Cypriot national of Turkish origin living in Nicosia. In January 1999, he sent a letter to the Municipality of Nicosia in order to organise his civil marriage with a Romanian ci tizen. The municipality answered by letter that section 34 of the Marriage Law did not offer the possibility for Turkish Cypriots and Muslims to contract a civil marriage. The applicant then married in Romania. In February 1999, on his return to Cyprus wit h his wife, the applicant was requested to pay 300 Cypriot pounds for the entry of his wife, in order to cover the possible costs of her repatriation to Romania. He did so and, in March 2000, his wife was granted the status of resident alien on the ground that she had lived under the same roof as her husband for one year. The sum of 300 Cyprus pounds was returned to the applicant.

Admissible under Articles 8 and 12: According to Article 146 of the Constitution, the Supreme Court is granted exclusive jurisdi ction to adjudicate finally on applications made to it complaining that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law o r is made in excess or abuse of powers vested in such organ, authority or person. Only acts which are “executory” in nature are open to challenge under Article 146 of the Constitution. The letter addressed by the municipality to the applicant could not be regarded as such an act. While the municipality is clearly an organ or authority exercising an executive or administrative authority, the letter in issue was essentially informative in nature. It did not give any legal result or create, modify or otherwise affect the rights and liabilities of the applicant, which were exclusively governed by the provisions of the Marriage Law to which the letter drew his attention. Even assuming that the municipality’s letter was open to challenge under Article 146 of the C onstitution, it remained for the Government to establish with sufficient certainty that such a challenge would have stood any prospects of success. Under Article 22, any person of marriageable age is free to marry and found a family “according to the law r elating to marriage applicable to such person under the provisions of the Constitution”. In cases in which one of the parties is a Turk of Muslim confession resident in Cyprus, marriages are governed by the Turkish Family (Marriage and Divorce) Law, Cap. 3 39, in force when the Constitution came into play. Civil marriages were to be conducted, according to a subsequent amendment of Cap. 339, by Turkish Communal Courts. In addition, section 34 of the Marriage Law, by excluding from its application marriages w here one of the parties is a Muslim Turk, conferred exclusive legislative powers on the Communal Chambers of the Turkish Community with regard to the “personal status” of members of the community. However, by reason of the general situation on the island, there are no Turkish Communal Courts operating in the Government-controlled part of the island whose judges could act as Marriage Officers for the purposes of Cap. 339. The Government argued that it would have been open to the applicant to state before the Supreme Court that the provisions of section 34 of the Marriage Law were unconstitutional. The Supreme Court would have been in a position to rule that the provisions of section 34 were no longer to be enforced, without interfering with the exercise of le gislative powers afforded to the Turkish Communal Chamber. However, the Government cited no authority in which in circumstances comparable to those in the present case a statutory provision had been held to be unconstitutional and of no continuing effect, and made no reference to any case-law in this respect. On the contrary, in the decision in the case of Ibrahim Aziz v. Cyprus, the Supreme Court held that although Article 63 of the Constitution and Article 5 of the Law on the Election of Members of Parlia ment did not provide for members of the Turkish Community living in the Government-controlled part of the island to vote in the Parliamentary elections, it was not for the court to intervene to fill such a legislative gap. Therefore, the Government did not show with a sufficient degree of certainty the existence of an available and effective remedy.

Admissible under Articles 8 and 12.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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