CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 octobre 2010

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margin-bottom:0pt; font-size:8pt } .s51B126BB { border-style:solid; border-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt } .sC70B94C7 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt } .s271B5584 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt } .sB38D83CF { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt } .sA68C4845 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Applications nos., 53432/99, 54086/00, 57899/00, 58378/00, 63518/00, 66141/01, 77752/01, 10192/02, 25057/02, 35846/02 by Erini FIEROS and Others against Turkey     The European Court of Human Rights (Fourth Section), sitting on 5   October 2010 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Işıl Karakaş, judges, and Fatoş Aracı, Deputy Registrar , Having regard to the above applications lodged with the European Court of Human Rights, respectively, on 4 November 1998 (57899/00), 1   December 1999 (53432/99), 14 January 2000 (54086/00), 1 June 2000 (58378/00), 23   November 2000 (63518/00), 13 February 2001 (66141/01), 10 December 2001 (77752/01), 1   March 2002 (10192/02), 21 June 2002 (25057/02) and 16 September 2002 (35846/02), Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications 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 regard to the observations submitted in some cases by the Republic of Cyprus as intervening party, Having deliberated, decides as follows: THE FACTS The details of the applicants are contained in the annex. The Turkish Government (“the Government”) were represented by their Agent; and in those cases in which they were intervening party, the Republic of Cyprus were represented by their Agent. The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. The applicants submitted that since the 1974 Turkish intervention in northern Cyprus they have been deprived of their property rights, as their property was located in the area that was under the occupation and control of the Turkish military authorities. Since that date, they had been prevented from having access to and from using their respective homes and properties. In particular: 1. Application no. 53432/99 Fieros v. Turkey The first applicant, mother of the second and third applicants (born in 1951 and 1949 respectively) was married to Michael Fieros, who by 1974 was a leading property developer in the Kyrenia area, owning over 200 sites on many of which he had built villas and luxury flats as well as the family home. On his death in 1983, his property passed to the applicants. In or about 1995, the second applicant donated her share in the property to the second and third applicants. 2. Application no. 54086/00 Akinita G. Ioannides Ltd and Others v. Turkey The second applicant is the father of the third, fourth, fifth and sixth applicants, born in 1925, 1959, 1960, 1961 and 1967 respectively. The third to sixth applicants are shareholders in the first applicant, a company set up in 1968, which dealt in real estate. The fifth and sixth applicants are director and secretary, and director, respectively of the first applicant. The first applicant owned various houses, shops, warehouses and plots of land. This property included the house built on plot 150 which was where the other applicants were living in 1974 and had been living since 1968. 3. Application no. 57899/00 Arestis v. Turkey The applicant owned a half share in immovable property in Dherynia, near to Famagusta, consisting of some 11 acres of orange groves. He had married in April 1968 and from July 1971 had been living with his wife and two children in a house which belonged to his wife. 4. Application no. 58378/00 Toumazi v. Turkey The applicants are a family, consisting of a father, mother and three children (born in 1958, 1960 and 1969 respectively). The first applicant owned, or part owned, some 20 plots of land in and around Famagusta, including buildings, shops, apartments, a restaurant and various land on or near the seafront as well as the family home. The third, fourth and fifth applicants each owned varying shares in thirteen plots of land. The second applicant owned half of two plots, one co-owned with the first applicant; while the third applicant wholly owned another plot of land. 5. Application no. 63518/00 Myrofora Ioannou and Others v. Turkey The applicants are a family (grandmother, uncle, father, mother, son and daughter) born in 1916, 1938, 1941, 1947, 1968 and 1970 respectively. They owned, or part-owned, 17 plots of land and four houses and various other buildings in or around Famagusta. Of the houses, two were claimed as having been family homes: a house built on plot 504 which had been the home where the second and third applicants had grown up and where the first and second applicants had been living in 1974 and which was now owned by the fifth and sixth applicants; and a house built on plot 1189 where the third, fourth, fifth and sixth applicants had been living in 1974 and which was jointly owned by the second and third applicants. 6. Application no. 66141/01 Karefyllides v. Turkey The applicants are mother and daughter, born in 1928 and 1951 respectively. In 1973, the first applicant's husband died and the family home owned by him was inherited by the first applicant and her two children. In January 1974, on the second applicant's marriage, the first applicant rented an apartment pending the availability of another property under lease. In 1995, due to health reasons, the first applicant transferred her share in the family home and other properties, including houses, shops and fields to the second applicant. 7. Application no. 77752/01 Charalambous and Others v. Turkey The applicants are a family; the third and fourth applicants born in 1933 and 1931 are the parents of the first and second applicants born in 1960 and 1959. Prior to the invasion in 1974, the third applicant had run a shop on land which had been owned by the fourth applicant. She had also owned two plots of land, on one of which was situated the family home. 8. 10192/02 Iro Schiza and Others v. Turkey The applicants are a family; the first applicant is the mother of the second, third, fourth and fifth applicants, born in 1950, 1952, 1955 and 1958 respectively. Prior to events in 1974, they had lived together in the family home owned by the first applicant's husband. His property, some forty plots of land, including business premises, building plots, fields and orchards, was inherited by the applicants on his death in 1981. The first applicant however donated her share to the other applicants. 9. 25057/02 Stephanioiu and Others v. Turkey The first and second applicants, husband and wife, are the parents of the third, fourth and fifth applicants who were born in 1961, 1963 and 1975. The first applicant owned 29 plots of land, 2 flats and a storehouse; the second applicant owned 3 building plots, 3 buildings and 2 flats; both appear to have jointly owned the family apartment. The third, fourth and fifth applicants also owned property, including a flat and various plots of building land. 10. Application no. 35846/02 Harpas and Others v. Turkey The applicant family, now living in Australia, consist of the first and second applicants, husband and wife, and their two children, the third and fourth applicants, born in 1967 and 1968. The first applicant was part owner of the family house, as well sharing ownership of a plot of land with the second applicant. COMPLAINTS   The applicants in all cases (save that in no. 54086/00, the first applicant alone claimed to hold title to property and in no. 77752/01 the third and fourth applicants alone claimed to hold title to property) complained under Article 1 of Protocol No. 1 that they had been denied access to and enjoyment of their property in the occupied area of northern Cyprus. The applicants (save for the applicant company in no. 54086/00) complained under Article 8 that they had been unable to return to their homes. The applicants complained under Article 14 that the above matters disclosed discrimination. THE LAW A. Concerning property issues (Article 1 of Protocol No. 1) Insofar as the applicants in these applications complained of interference with their property rights guaranteed under Article 1 of Protocol No. 1, the Court recalls that applicants are required by Article 35 § 1 of the Convention to exhaust available, effective domestic remedies. In Demopoulos and Others v. Turkey [GC] (no. 46113/99 et al, decision of 1 March 2010, ECHR 2010-...) the Grand Chamber examined the issue of whether Greek-Cypriot applicant property-owners had available to them a remedy in respect of their complaints. It found that for the purposes of Article 35 § 1 of the Convention, the procedure before the Immovable Property Commission (“IPC”), and further appeal to the “TRNC” High Administrative Court, provided for in Law 67/2005 were to be regarded as “domestic remedies” of the respondent State and that no ground of exemption of the application of Article 35 § 1 of the Convention has been established in that regard. As regarded the efficacy of the framework of redress provided, it held: “127. The Court finds that Law 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots. The applicant property owners in the present cases have not made use of this mechanism and their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies. It is satisfied that Law 67/2005 makes realistic provision for redress in the current situation of occupation that is beyond this Court's competence to resolve. 128.     Lastly, it would stress that this decision is not to be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution. If, however at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above. The Court's ultimate supervisory jurisdiction remains in respect of any complaints lodged by applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress.” The Court notes that the applicant property owners in the present cases have not made use of this mechanism. Their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. B. Concerning Article 8 (right to respect for home) Insofar as applicant property owners also complained that they had been prevented from returning to their homes,   the Court notes that claimants who own property may make claims to the IPC in respect of non-pecuniary damages, which provision in Law 67/2005 is broad enough to encompass aspects of any loss of enjoyment of home (see Demopoulos and Others , cited above, §§   37 and 133). These complaints also fail for non-exhaustion pursuant to Article 35 §§ 1 and 4 of the Convention. Insofar as in some of the applications, various applicants complain under Article 8 of being prevented from returning to their homes in which they have no property interest, the property being owned by another family member or by a company, the Court would note that the owner of the family home may, as noted above, make a claim before the IPC for restitution, exchange or compensation in lieu of restitution. It cannot be anticipated at this stage whether or not the owner would be successful in obtaining possession of the erstwhile family home or whether, for example, they might accept an offer of friendly settlement of compensation during the proceedings as many previous claimants before the IPC have done. It therefore seems to the Court that the applicants' claims of being unable to return to their former home are contingent on the outcome of any proceedings brought by the owners in respect of their property rights and the decisions as to the eventual disposal of that property if returned to them; these applicants' claimed links with the property themselves have thus become legally tenuous and any return to occupation a somewhat speculative option dependent on the vindication by another of his ownership rights through domestic procedures. In these very particular circumstances, the Court considers that no separate issue arises concerning the applicants' claims about inability to return to homes which are owned by others (see Papayianni and Others v. Turkey (dec.), nos. 479/07, 4607/10 and 10715/10, 6 July 2010). C. Remaining complaint under Article 14 of the Convention (prohibition of discrimination in enjoyment of Convention rights) Having regard to the facts of the cases, the submissions of the parties and its findings under Article 1 of Protocol No. 1 and Article 8 of the Convention, the Court considers that no further issue arises for examination concerning the remaining complaint made by the applicants. For these reasons, the Court unanimously Decides to join the applications; Declares the applications inadmissible.   Fatoş Aracı,   Nicolas Bratza   Deputy Registrar   President A N N E X   No. Appl. no. Lodged on Applicant name date of birth place of residence Represented by Nationality 1. 53432/99 01/12/1999 Erini Fieros 22/10/1926 Nicosia Neoclis Fieros 04/10/1951 Nicosia Nicos Fieros 27/01/1949 Nicosia Achilleas Demetriades CYP 2. 54086/00 14/01/2000 Akinita G. Ioannides Ltd   George Ioannides 28/07/1925 Larnaca Panayiota Ioannides 18/01/1959 Larnaca Kika Ioannides 13/01/1960 Larnaca Photis Ioannides 23/11/1961 Larnaca Christos Ioannides 15/05/1967 Larnaca Achilleas Demetriades CYP 3. 57899/00 04/11/1998 George Arestis 13/03/1945 Nicosia Achilleas Demetriades CYP 4. 58378/00 01/06/2000 Dionysis Toumazi 02/12/1925 Nicosia Rena Toumazi 18/09/1938 Nicosia Loukia Klokkari 08/11/1958 Nicosia Antonis Toumazi 02/11/1960 Nicosia Demetra Toumazi 26/10/1969 Nicosia Achilleas Demetriades CYP 5. 63518/00 23/11/2000 Myrofora Ioannou 06/08/1916 Paralimni Panos Ioannou 20/11/1938 Paralimni Stelios Ioannou 01/06/1941 Nicosia Despo Ioannou 22/07/1947 Nicosia Ioannis Ioannou 23/05/1968 Nicosia Maria Ioannou 17/05/1970 Nicosia Achilleas Demetriades CYP 6. 66141/01 13/02/2001 Eleni Karefyllides 01/05/1928 Nicosia Maria Karefyllides 28/07/1951 Nicosia Achilleas Demetriades USA CYP 7. 77752/01 10/12/2001 Pantelakis Charalambous 23/07/1960 Cancun, Mexico Charalambos Charalambous 03/02/1959 Limassol Andreas Charalambous 26/03/1933 Limassol Eleni Charalambous 20/08/1931 Limassol Achilleas Demetriades CYP 8. 10192/02 01/03/2002 Iro Schiza Simou 17/09/1928 Nicosia Andreoulla Schiza Constantinidou 28/10//1950 Nicosia Loizos Schiza Simo u 27/10/1952 Nicosia Constantinos Schiza Simou 03/02/1955 Nicosia Savvas Schiza Simou 29/10/1958 Nicosia Achilleas Demetriades CYP 9. 25057/02 21/06/2002 Nicos Stephanou 27/03/1930 Nicosia Georgia Stephanou 22/08/1940 Nicosia Hermes Stephanou 01/07/1961 Limassol Sotos Stephanou 30/04/1963 Nicosia Stephanos Stephanou 03/11/1975 Limassol Achilleas Demetriades CYP 10. 35846/02 16/09/2002 Panayiotis Harpas 18/02/1939 Adelaide, Australia Ellada Harpas 28/08/1944 Adelaide, Australia Androulla Vagnoni 23/03/1967 Adelaide, Australia John Harpas 12/08/1968 Adelaide, Australia Achilleas Demetriades CYP and AUSTRALIAN