CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 novembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA43C3626 { width:28.35pt; font-family:Arial; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F6F0E53 { width:22.87pt; font-family:Arial; display:inline-block } .s396A5B88 { width:146.43pt; font-family:Arial; display:inline-block } .sF993D337 { width:25.88pt; font-family:Arial; display:inline-block } .sF78227B2 { width:156.43pt; font-family:Arial; display:inline-block }     THIRD SECTION DECISION Application no. 36974/21 Georgios STYLIANOU against Cyprus   The European Court of Human Rights (Third Section), sitting on 14   November 2023 as a Committee composed of:   Darian Pavli , President ,   Georgios A. Serghides,   Oddný Mjöll Arnardóttir , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   36974/21) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 July 2021 by a Cypriot national, Mr Georgios Stylianou (“the applicant”), who was born in   1963, lives in Nicosia and was represented by Ms A. Efstathiou, a lawyer practising in Nicosia; the decision to give notice of the complaint concerning Article 8 of the Convention to the Cypriot Government (“the Government”), represented by their Agent, Mr G. L. Savvides, Attorney General of the Republic of Cyprus, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the alleged violation of the applicant’s right to respect for home under Article 8 of the Convention, on account of the order to demolish his illegally constructed house. 2 .     On 13 January 2020 the District Court of Nicosia (criminal case no.   6063/15) found the applicant guilty of building a house, an auxiliary construction and a surrounding wall (“the premises”) without having obtained a building permit from the competent authority, in violation of the relevant provisions of the Streets and Buildings Regulation Law, Cap. 96. The court held, inter alia, that the applicant occupied and used the premises situated in the contested plot of land and that he resided at the premises with his family without a certificate of approval having been issued by the competent authority. 3 .     On the same day, following the pronouncement of the applicant’s conviction, the prosecution requested that a demolition order be issued for the premises. The applicant’s lawyer objected, reminding the court that the case “concern[ed] the [applicant’s] house where he reside[d] with his family and where they exercise[d] their constitutional rights of private and family life”. 4 .     Later that day, having heard both parties, the court decided on the sentence. The court considered that the offences committed were serious, as the premises were particularly large and had been illegally constructed without an application for a building permit having ever been made. For the purpose of mitigating the sentence, the court took into account the fact that the premises had been used by the applicant and his family as their home and the time that had lapsed since the commission of the offences. It noted however that the illegality had been continuous. The court therefore imposed fines on the applicant and his co-accused. As to the demolition, the court concluded that in light of the seriousness of the offences committed, the fact that the case concerned a home could not alter its decision since the construction was entirely illegal. It ordered the demolition of the premises within two months of the date of the decision, namely 13 January 2020, unless the applicant secured a relevant building permit in the meantime. The demolition order had been necessary to uphold the authority of the urban planning legislation, while any refusal to issue it would be tantamount to approving the continuation of illegality. The court finally ordered the applicant to terminate the use of the premises within two months of the decision unless he secured a certificate of approval by that time. 5 .     On 21 January 2020 the applicant appealed to the Supreme Court with three reasons for appeal. The third reason for appeal concerned the demolition order. The applicant argued that the demolition order had been a disproportionate and unjustified measure as it concerned his home and it had never been proven that the house had been illegally built. 6 .     In his written pleadings submitted to the Supreme Court on 2 July 2020 the applicant argued that the Supreme Court should quash the demolition order in line with the principle of proportionality and with Article 12(3) of the Constitution which states that no law shall provide for a punishment which is disproportionate to the gravity of the offence and “the equivalent article of the [Convention]”. 7.     On 29 March 2021 the Supreme Court allowed the appeal partly, but it dismissed the applicant’s claims concerning the demolition order which remained in force. In relation to the proportionality argument, the Supreme Court upheld the District Court’s reasoning adding briefly that the principle of proportionality had not been breached. It does not appear that the demolition order has been enforced. 8.     Relying on Article 8 of the Convention, the applicant complained before this Court that the order to demolish his house interfered with his right to a home as it was his and his family’s only home and if it was enforced, they would become homeless. He further complained that he had not had the proportionality of the measure reviewed by a tribunal in the light of the relevant principles under Article 8 of the Convention. THE COURT’S ASSESSMENT 9.     Considering the Government’s objection that the applicant had failed to exhaust domestic remedies, the Court reiterates that Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body “at least in substance”. This means that if the applicant has not relied on the provisions of the Convention, he or she must have raised arguments to the same or like effect on the basis of domestic law, in order to have given the national courts the opportunity to redress the alleged breach in the first place. It is not sufficient that a violation of the Convention is “evident” from the facts of the case or the applicant’s submissions. Rather, he or she must actually complain (expressly or in substance) of it in a manner which leaves no doubt that the same complaint that was subsequently submitted to the Court had indeed been raised at the domestic level (see Farzaliyev v. Azerbaijan , no. 29620/07, § 55, 28   May 2020, with further references). 10.     In the present case the applicant submitted before the district court that it should not issue a demolition order considering that the case concerned the applicant’s house where he and his family resided and where they exercised their constitutional rights of private and family life. Before the Supreme Court he added very briefly that the demolition order had been disproportionate under the circumstances, considering that it concerned his home. The applicant’s lawyer based this argument on Article 12(3) of the Constitution according to which laws shall not provide for a punishment which is disproportionate to the gravity of the offence. On appeal the applicant made no reference to his private and family life, or to Article 8 of the Convention, and the corresponding Articles of the Constitution (see paragraph   5 above). 11.     Before this Court the applicant argued that the domestic courts knew that the said house had been his and his family’s sole home. However, from the casefile and the arguments raised before the domestic courts, it does not transpire that the applicant indeed argued before the domestic courts that the said house had been his “only home” or that he and his family would “remain homeless” with its demolition (contrast with Alif Ahmadov and Others v.   Azerbaijan , no. 22619/14, §§ 11, 17 and 52, 4   May 2023, where the applicant argued before the domestic courts that the house in question was their only home and that they would end up on the street if evicted; and Orlić v.   Croatia , no. 48833/07, §§ 26 and 41, 21 June 2011, where the applicant argued that the eviction would render him and his family homeless). 12.     The Court further notes that in Cyprus’s adversarial system the applicant could not expect the courts to inquire into his personal circumstances without him having brought such circumstances to the courts’ attention. Circumstances such as an absence of alternative housing or lack of financial means to buy a new house which the applicant raised before this Court, or other factors concerning the applicant’s family situation had been necessary information to enable the domestic courts in an adversarial system to perform a balancing exercise between the interests of the applicant and the State (contrast with Kryvitska and Kryvitskyy v.   Ukraine , no.   30856/03, §§   20 and 50, 2 December 2010, where the second applicant argued that eviction would jeopardize the rights of the two minor children, and Simonova v.   Bulgaria , no. 30782/16, §§ 13, 14 and 35, 11 April 2023, where the applicant argued that she lived in the property with her four minor children; and compare with similar situation in Ghailan and Others v.   Spain , no.   36366/14, § 76, 23 March 2021). 13.     The applicant had the benefit of legal advice and had been given the opportunity to raise arguments and bring evidence on the basis that the demolition would disproportionately interfere with his right to respect for his home. The fact alone that the applicant resided in the house under consideration with his family did not preclude the existence of alternative housing, or the possibility to buy property and had not sufficed, in the circumstances of the present case, to prevent the domestic courts from issuing a demolition order. The district court in its decision on the sentence did in fact consider the applicant’s argument that the said house had been the applicant’s home. However, in the absence of other factors, and considering the extent of the illegality of the construction, that court held that that fact had not been enough to prevent it from issuing a demolition order (see paragraph   4 above). Without speculating on the outcome of the proceedings, the Court has no reason to believe that had the applicant raised the circumstances he raised before this Court, the domestic courts would fail to take them into account in their proportionality assessment. 14.     The Court accordingly concludes that the applicant, by failing to raise before the domestic courts the circumstances that he raised before this Court, prevented the domestic courts from addressing the matter and effecting a proportionality assessment. He thus failed to exhaust an effective domestic remedy. 15.     It follows that the present application must be declared inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 7 December 2023.     Olga Chernishova   Darian Pavli   Deputy Registrar   President