CEDH · CASELAW;REPORTS;ENG — 14 janvier 1998

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 29515/95                            Xenis Larkos                               against                               Cyprus                      REPORT OF THE COMMISSION                    (adopted on 14 January 1998)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-23) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 24-42) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaints declared admissible           (para. 24). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 25). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 14 of the Convention           taken in conjunction with Article 8 thereof           (paras. 26-34). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 35). . . . . . . . . . . . . . . . . . . . .6        D.    As regards Article 14 of the Convention           taken in conjunction with Article 1 of Protocol No. 1           (paras. 36-39). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 40). . . . . . . . . . . . . . . . . . . . .7        E.    Recapitulation           (paras. 41-42). . . . . . . . . . . . . . . . . . .7   APPENDIX: DECISION OF THE COMMISSION AS TO           THE ADMISSIBILITY OF THE APPLICATION. . . . . . . .8   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Cypriot citizen, born in 1936 and resident in Nicosia. He was represented before the Commission by Mr A. Demetriades, a lawyer practising in Nicosia.   3.    The application is directed against Cyprus. The respondent Government were represented by their Agent, Mr Alecos Markides, the Attorney-General of the Republic of Cyprus.   4.    The case concerns the lack of protection of Government tenants under domestic law. The applicant invokes Article 14 of the Convention taken in conjunction with Article 8 thereof and Article 1 of Protocol No. 1.   B.    The proceedings   5.    The application was introduced on 21 November 1995 and registered on 12 December 1995.   6.    On 10 September 1996 the Second Chamber of the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 12 November 1996. The applicant replied on 7 February 1997 after an extension of the time-limit.   8.    On 21 May 1997 the First Chamber of the Commission, to which the case had been transferred, declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 3 June 1997 and they were invited to submit such further information or observations on the merits as they wished. The parties did not avail themselves of this possibility.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM    M.P. PELLONPÄÄ, President                N. BRATZA                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                B. MARXER                B. CONFORTI                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs   M. HION           Mr    R. NICOLINI   12.   The text of this Report was adopted on 14 January 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   16.   On 1 May 1967 the applicant rented from the Government of Cyprus a house in which he has been living ever since with his family. He signed a contract, a copy of which exists in the file. This contract provided for the payment of rent by the applicant and for a termination date.   17.   On 3 December 1986 the Ministry of Finance informed the applicant that the permission by virtue of which the applicant occupied the premises was revoked. It requested the applicant to surrender the property by 30 April 1987. On 3 June 1987 the Attorney General warned the applicant that, if he did not evacuate the premises before 31 July 1987, he would take legal action against him.   18.   On 3 July 1987 the applicant replied that he had been living together with his large family in the house in question for twenty years. He had been obliged to spend significant sums of money for the maintenance and improvement of the premises, because the competent public authorities had shown no interest. Since he was a "statutory tenant", he intended to continue to occupy the premises as long as he was protected by law.   19.   On 9 March 1989, replying to a second letter by the Attorney General dated 5 January 1989, the applicant reiterated his earlier position.   20.   On 3 February 1990 the Government of Cyprus instituted proceedings against the applicant before the District Court of Nicosia. The Government submitted, inter alia, that the applicant did not occupy the flat by virtue of a tenancy agreement, but that the flat had been allocated to him by administrative order because of his position in the civil service.   21.   On 5 February 1992 the District Court of Nicosia gave judgment against the applicant. The court did not pronounce on the issue of the title by virtue of which the applicant occupied the flat. The court interpreted the Rent Control Law (Law 23/1983) and concluded that it only bound private owners of property and not the Government of Cyprus. As a result, a person who rented premises owned by the Government was not a "statutory tenant" protected by that law. The applicant was ordered to vacate the premises before 30 June 1992.   22.   The applicant appealed against the judgment to the Supreme Court relying on Article 14 of the Convention and Article 1 of Protocol No. 1. At the hearing before the Supreme Court the applicant relied, in principle, on the following argument: his rights as a tenant were "property rights" within the meaning of Article 1 of Protocol No. 1 and he was being subjected to discrimination in the enjoyment of these rights, because Law 23/83, as interpreted by the District Court of Nicosia, gave no protection to the Government's tenants, while the same law protected the Government as a "statutory tenant" when the Government rented premises owned by a private individual. However, the applicant also submitted that he enjoyed less protection than tenants of private persons.   23.   On 22 May 1995 the Supreme Court dismissed the applicant's appeal, considering that the applicant could not claim any property rights under Article 1 of Protocol No. 1 as a tenant. The Court also found that, in any event, the notion of equality did not require that a person who enjoyed the protection of Law 23/83 as a tenant should be automatically required to grant the same protection to his or her tenants if that person happened to own property. Finally, the Court considered, in an obiter dictum, that even if the case concerned the different treatment reserved by the law to property rented out by private owners and to property rented out by the Government, there would be no violation of the Constitution or the Convention because "it would be reasonable to consider that it is not necessary to grant protection (to tenants) vis-à-vis the Government which is not in the same position as the private owners and it is not expected to administer the property of State with criteria similar to those guiding the private owners". Further to this decision, the applicant was expelled from the house.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   24.   The Commission has declared admissible the applicant's complaint that, being a Government tenant, he enjoyed less protection in respect of his rights to respect for his home and peaceful enjoyment of his property than tenants of private persons, because he was not protected against expulsion after the termination of his contract.   B.    Points at issue   25.   What is at issue is whether there has been a violation of Article 14 (of the Convention taken in conjunction with Article 8 (Art. 14+8, P1-1) thereof and Article 1 of Protocol No. 1 (P1-1).   C.    As regards Article 14 of the Convention taken in conjunction with      Article 8 (Art. 14+8) thereof   26.   Article 14 (Art. 14) of the Convention provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."   27.   Article 8 (Art. 8) of the Convention provides as follows:        "1.   Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.    There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."   28.   The applicant argues that there has been a violation of Article 14 of the Convention in conjunction with Article 8 (Art. 14+8) thereof, because the decision of the Supreme Court which interpreted Law 23/83 in a discriminatory manner resulted in his not being protected from eviction from his home. The applicant points out that the Supreme Court did not advance any reasons why he should enjoy less protection than tenants of private owners. In any event, he submits that he is the only Government tenant having had to face eviction.   29.   The Government submit that all the tenants of the Government are treated equally. They also argue that, as the Supreme Court pointed out, it is not necessary to extend to the tenants of the Government the protection enjoyed by the tenants of private owners, because the Government is not expected to administer the property of the State with criteria similar to those guiding private owners.   30.   The Commission notes, as a preliminary point, that the applicant occupied the house in question by virtue of a contract which he had signed with the Government on   1 May 1967. This agreement had many of the characteristics of ordinary lease contracts providing for the payment of a rent and a termination date.   31.   The Commission recalls that, according to the case-law of the Court, the guarantee of Article 14 (Art. 14) of the Convention has no independent existence in the sense that it relates solely to rights and freedoms set forth in the Convention. Nevertheless, a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question, may infringe this Article when read in conjunction with Article 14 (Art. 14) for the reason that it is of a discriminatory nature (Eur. Court HR, judgment of 23 July 1968 in the Belgian Linguistic case, Series A no. 6, p. 33, para. 9).   32.   The Commission considers that, although Article 8 (Art. 8) of the Convention gives rise to positive obligations for States, it might not necessarily require States to take measures to protect tenants from expulsion after the termination of the contracts by virtue of which they occupied their "homes". However, Cyprus has taken such measures by enacting the Rent Control Law (Law 23/1983). Since this law regulates "the right to respect for one's home" under Article 8 (Art. 8) of the Convention, it must apply in a non-discriminatory manner in accordance with Article 14 (Art. 14) thereof.   33.   However, this law, as interpreted by the Supreme Court, does not protect Government tenants from expulsion from their homes after the termination of their contracts. The applicant being such a tenant he was, therefore, treated differently from tenants of private owners who enjoy the protection of Law 23/1983. According to the case-law of the Court, a differential treatment amounts to a violation of Article 14 of the Convention taken in conjunction with Article 8 (Art. 14+8) thereof if it does not have a legitimate aim and if there is no reasonable proportionality between the means employed and the aim sought to be realised (see above-mentioned judgment in the Belgian Linguistics case, p. 34, para. 10).   34.   The Commission notes that the only argument advanced by the Government in order to justify this differential treatment was that they are not expected to administer the property of the State with criteria similar to those guiding private owners. The Commission considers that this cannot amount in itself to an objective and reasonable justification, considering that the tenancy agreement which the   applicant had concluded with the Government was similar to those concluded between private individuals. No other arguments having been advanced, the Commission considers that the applicant was discriminated against in the enjoyment of the right to respect for his home, since he, being a Government tenant, did not have the protection which tenants of private owners had against expulsion after the termination of their contracts.        CONCLUSION   35.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 (Art. 14+8) thereof.   D.    As regards Article 14 of the Convention taken in conjunction with      Article 1 of Protocol No. 1 (Art. 14+P1-1)   36.   Article 1 of Protocol No. 1 (P1-1) provides that "every natural or legal person is entitled to the peaceful enjoyment of his possessions".   37.   The applicant submits that his rights as a tenant were "property rights" within the meaning of Article 1 of Protocol No. 1 (P1-1).   38.   The Government argue that tenancy agreements do not give rise to rights under Article 1 of Protocol No. 1 (P1-1).   39.   The Commission considers that, having found a violation of Article 14 taken in conjunction with Article 8 (Art. 14+8) of the Convention, it is not necessary also to examine whether there has been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).        CONCLUSION   40.   The Commission concludes, unanimously, that in the present case it is not necessary to examine whether there has been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).   E.    Recapitulation   41.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 (Art. 14+8) thereof (para. 35 above)   42.   The Commission concludes, unanimously, that in the present case it is not necessary to examine whether there has been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) (para. 40 above).        M.F. BUQUICCHIO                        M.P. PELLONPÄÄ         Secretary                             President    to the First Chamber                  of the First Chamber