CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block }                        AS TO THE ADMISSIBILITY OF                         Application No. 12822/87                       by Andrew G. KAPAS                       against the United Kingdom             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 3 February 1987 by Andrew George Kapas against the United Kingdom and registered on 24 March 1987 under file N° 12822/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, submitted by the applicant, may be summarised as follows:           The applicant, Mr.   A. G. Kapas, is a British citizen who was born in Cyprus in 1920.   He resides in the United Kingdom.           In 1971 he left the United Kingdom with his family and took up residence in Cyprus.   There he owned a considerable amount of real and personal property including a luxury house and substantial farming land and equipment.           In 1974 Turkey invaded Cyprus and occupied about 40% of the island including the applicant's land.   The Turkish authorities allegedly expropriated all of the applicant's real and personal property.   In 1974 the applicant made a claim to the British High Commission in Nicosia which transmitted it to the Turkish Cypriot Claims Commission.   The Claims Commission has declined to process his claim because the applicant has Greek or Greek Cypriot connections.           The applicant sought legal aid to bring an action against the United Kingdom but was refused it.   Nevertheless on 28 June 1985 he commenced an action in the Queen's Bench Division of the High Court of Justice of England, seeking a declaration that the British Government honour its obligations under the Treaty of Guarantee entered into in 1960 by the Republic of Cyprus on the one part and Greece, the United Kingdom and Turkey on the other part.   He claimed that the United Kingdom in order to fulfil its obligations under the Treaty should take legal action against Turkey for the return of his property and for fair compensation for his lost property, his loss of earnings and for hardship endured as a result of those losses, and in the alternative that the United Kingdom should compensate him for such losses.           The Treaty of Guarantee of 16 August 1960 provides that in return for the Republic of Cyprus undertaking not to participate in any political or economic union with any other State and not to agree to any partition of the island, the United Kingdom, Greece and Turkey undertook to recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus and, in the case of breach of any provisions of the Treaty "to consult together with a view to making representations, or taking the necessary steps to ensure observance of those provisions".   The United Kingdom then made a declaration that, having examined the documents concerning the establishment of the Republic of Cyprus, including the Treaty of Guarantee, it accepted those documents as the agreed formulation for the final settlement of the "problem of Cyprus".   It further declared that it was prepared to transfer sovereignty over the island to the Republic of Cyprus subject to certain conditions including that "provision shall be made, by agreement, for the protection of the fundamental human rights of the various communities in Cyprus".   The Constitution of Cyprus, in Part II, contains a Bill of Rights which includes in its Art. 23 a right to own property.   A regime of enforcement of this and other constitutional rights is also provided.     On 16 December 1985 the Attorney-General obtained an order from a Master of the High Court to have the applicant's statement of claim struck out as not disclosing any cause of action.   The Master held that the courts "could not control the use of prerogative in relation to treaty-making powers and the consequences of treaties". The applicant appealed against that order to the Queen's Bench Division of the High Court of Justice.           His appeal is still pending.           He again applied for legal aid to the Law Society.   The General Committee of the Law Society refused legal aid on the ground that there was no cause of action in the proceedings he intended to take.   The applicant appealed to the   Area Committee of the Law Society which, on 21 April 1986, upheld the General Committee's decision.   COMPLAINTS           The applicant makes the following complaints:   1.       that the United Kingdom Government, as obliged by the         Treaty of Guarantee 1960, failed to protect his human rights         and,   in particular, his property rights contrary to         Article 1 of Protocol No. 1;   2.       that the denial of legal aid deprived him of a fair hearing of         his civil claim, contrary to Article 6 para. 1 of the Convention;   3.       that the Master of the Court who struck out his claim was         biased so that he was denied a fair hearing of his civil         claim contrary to Article 6 para. 1 of the Convention;   4.       that, because the Master of the Court struck out his         statement of claim, he was denied an effective remedy         contrary to Article 13 of the Convention.       THE LAW   1.       The applicant has complained under Article No. 1 of Protocol No. 1 (P1-1) that the United Kingdom has failed to perform its international obligations under the Treaty of Guarantee of 1960 and the associated declaration to protect the fundamental rights of the various communities in Cyprus and, in particular, his property rights.           Article 1 of Protocol No. 1 (P1-1) states that     "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   ..."             The Commission notes that there has been no direct interference with the applicant's possessions by the United Kingdom authorities.   The alleged expropriation of his property in Cyprus is attributed to Turkey and therefore in itself is not a matter for which the United Kingdom Government is responsible under the Convention.   The applicant maintains however that the United Kingdom is obliged to take measures against Turkey to protect his property rights.           The Commission recalls that it has previously held that "no right to diplomatic protection or other measures by a High Contracting Party on behalf of persons within its jurisdiction is as such guaranteed by the Convention"   (Bertrand Russell Peace Foundation Limited v.   United Kingdom No. 7597/76, Dec. 2.5.78, D.R. 14 p. 117 at 123, 124).   The Commission also held that there was no such right which could be inferred from Article 1 (Art. 1) of the Convention (ibid.).           In the present case the Commission notes that there is no indication that the Treaty of Guarantee 1960 and the Declaration of the United Kingdom relied on by the applicant extend the jurisdiction of the United Kingdom for purposes of Article 1 (Art. 1) of the Convention or create an individual right vis-à-vis the United Kingdom which can be enforced in proceedings before the Commission.   Furthermore, the Commission recalls, even assuming that he has exhausted domestic remedies, that there is no right in the Convention which requires a High Contracting Party to espouse the applicant's complaint under international law or intervene with the Turkish authorities on his behalf.   This complaint must therefore be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that the denial of legal aid deprived him of a fair hearing of his civil claim contrary to Article 6 para. 1 (Art. 6-1) of the Convention which provides inter alia as follows:           "In the determination of his civil rights and obligations   ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.   ..."             The Commission does not find it necessary to determine whether the applicant's claim in the United Kingdom proceedings may be described as a "civil right".   Even assuming that the proceedings concern such a right, the Commission finds that the complaint under Article 6 (Art. 6) is inadmissible for the following reasons.           The Commission recalls that the European Court of Human Rights held in the Airey Case that Article 6 para. 1 (Art. 6-1) of the Convention does not require a High Contracting Party to provide free legal aid for every dispute relating to a civil right (Eur.   Court H.R., Airey Judgment of 9 October 1979, Series A no. 32 para. 26).   This point has been further elaborated by the Commission in X v.   United Kingdom (No. 8158/78, Dec. 10.8.80, D.R. 21 p. 95 at 101) in the following terms:           "Article 6 (1) (Art. 6-1) does not require that legal aid be provided in every case, irrespective of the nature of the claim and supporting evidence.   Where an individual is refused legal aid in a particular case because his proposed civil claim is not sufficiently well grounded or is regarded as frivolous or vexatious the burden would then fall on him to secure his access to court in some other way such as, for example, bringing the action himself or seeking assistance from some other source.   Accordingly the Commission is of the opinion that where a prisoner has been refused legal aid on the basis that his claim lacks reasonable prospects of success such a situation would not normally constitute a denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary."             In the present case the legal aid authority has rejected the application for legal aid on the basis that his case did not disclose a cause of action.   There is no indication from the case file that this decision is, in any sense, arbitrary.   Moreover, the Commission observes that the absence of legal aid in the applicant's case has not prevented him from opposing the application to the Master of the High Court to strike out his statement of claim or from lodging an appeal against his decision.           It follows that the above complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has further complained that the Master of the Queen's Bench Division who struck out his claim was biased against him, in breach of his right to a fair hearing guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.   However, the applicant has lodged an appeal against the Master's decision which is apparently still pending before the High Court.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   4.       Finally the applicant complains that, because his statement of claim was struck out by the Master, he was denied an effective remedy contrary to Article 13 (Art. 13) of the Convention.           However the Commission finds that no separate issue arises under this provision since it has already examined the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Commission whose more rigorous procedural guarantees take precedence over the more general and less strict requirements of Article 13 (Art. 13) (see No. 9276/81, Dec. 17.11.83, D.R. 35 p. 13 at p. 21).             For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)