CEDH · CASELAW;CLIN;ENG — 18 juin 2020

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Information Note on the Court’s case-law 241 June 2020 Molla Sali v. Greece (just satisfaction) [GC] - 20452/14 Judgment 18.6.2020 [GC] Article 41 Just satisfaction Respondent State invited to guarantee applicant’s ownership of property bequeathed to her in Greece, or else to compensate her for its value in proportion to the percentage of which she was deprived   No jurisdiction for the Court to determine the applicant’s claims concerning property in Turkey Facts – On her husband’s death the applicant inherited his whole estate under a notarised public will. The deceased’s two sisters contested the will because their brother had belonged to the Muslim community and any matters relating to his estate were subject not to the provisions of the Greek Civil Code but to Sharia law and the jurisdiction of the mufti. After the referral of the case by the Court of Cassation, the court of appeal ruled that the law applicable to the deceased’s estate was Sharia law and that the public will in question was legally null and void. By judgment of 6   April 2017, the Court of Cassation dismissed the applicant’s appeal on points of law. She was thereby deprived of three-quarters of the bequest. By principal judgment of 19 December 2018 (see Information Note 224 ), the Grand Chamber found a violation of Article   14 of the Convention read in conjunction with Article   1 of Protocol No. 1. The Court held, in particular, that the difference of treatment suffered by the applicant as a beneficiary of a will drawn up in accordance with the Civil Code by a testator who is of Muslim faith as compared to a beneficiary of a will drawn up in accordance with the Civil Code by a non-Muslim testator was without objective and reasonable justification. The Court reserved the question of just satisfaction. Law – Article 41 (a)     Pecuniary damage (i)     Property located in Greece – Following the 6   April 2017 judgment of the Court of Cassation, the deceased husband’s sisters had applied, on 19   April 2017, to the court of first instance seeking a rectification of the property register at the Land Registry to recognise them as the joint owners of the testator’s property. On 20   November 2018 the court of first instance declared the two sisters joint owners and ordered the corresponding amendment to the property register. Finally, the court ruled that the applicant continued to be the joint owner of one quarter of the estate, for which fraction she had also to apply for re-registration. On 23   October 2019 the court of appeal upheld that judgment. On 20   December 2019 the applicant appealed on points of law. Even though those proceedings were still pending, the Court was not obliged to stay its decision pending their outcome. As regards the deceased’s sisters, the land register has not yet been rectified. Such rectification is only possible if there is an irrevocable judgment in favour of the sisters. Only in such a case can they be declared joint owners of the testator’s estate. Thus, first of all, the effect of the violation of the Convention found in the principal judgment has not yet become tangible. Secondly, in principle, it is not the Court’s task to prescribe exactly how a State should put an end to a breach of the Convention and make reparation for its consequences. Nevertheless, it is clear that re-establishing “the situation which would, in all probability, have existed if [the violation] had not been committed” would consist in taking measures to ensure that the applicant retains her ownership of the property in Greece bequeathed by her husband or, in the event of an amendment to the land register, that her property rights are restored. Unless the respondent State takes the above-mentioned measures within one year of the delivery of this judgment, it must pay an amount of compensation to the applicant that takes account of the value of the property bequeathed to her in proportion to the percentage of which she was deprived pursuant to the rules of Sharia law, that is to say 75%. However, if the outcome of the proceedings currently pending in Greece were to be consistent with the principal judgment, she would have to repay that sum to the respondent State in the event of its payment in the meantime. (ii)     Property located in Turkey – The application giving rise to the principal judgment had been brought solely against Greece. The question of the effects of the deceased’s will, in so far as it related to the property in Turkey, is the subject of proceedings still pending in the Turkish courts. On 18 January 2018 the Court of First Instance ruled that following the judgments delivered by the Greek courts, the Turkish courts were not required to reconsider the case. The appeals lodged by both the applicant and the testator’s sisters against that judgment are currently pending before a Turkish court of appeal. That being so, the Court could not discern any particular circumstances construable as amounting to the exercise by Greece of its jurisdiction in respect of the proceedings taking place in Turkey. It should also be noted that although the applicant’s late husband drew up his will in general terms, without specifically distinguishing between the properties located in Turkey and in Greece, the applicant’s notarised deed accepting the will refers to and describes the deceased’s property in Greece alone. At all events, in finding in its principal judgment that Article   1 of Protocol No. 1 was applicable, the Court had been referring exclusively to the property located in Greece. That was the sole basis on which the Court subsequently sought to ascertain whether Article   14 of the Convention read in conjunction with Article   1 of Protocol No. 1 had been breached. It cannot be overlooked that in that judgment the Court did not pronounce on the rights asserted by the applicant under Article   1 of Protocol No. 1 as regards the property located in Turkey. It follows that that property cannot be used as the basis for any just satisfaction claim against the respondent State in the framework of the present proceedings concerning the reserved question of the application of Article   41. Furthermore, pursuant to Article 46 of the Convention, the judgments of the Court are only binding on the States Parties to the proceedings giving rise to it, which was not the case for Turkey as regards the principal judgment in this instance. That having been said, there was nothing preventing the Turkish courts from giving a ruling taking account of the principal judgment. Moreover, the applicant could, if necessary, lodge an application against Turkey in respect of the final decision that would be given by the Turkish courts on the effects of her husband’s will concerning the property located in Turkey should such decision fail to take account of the fact that the Court’s principal judgment had found a violation by Greece of Article   14 of the Convention read in conjunction with Article   1 of Protocol No. 1 and fail to draw the requisite conclusions, having regard to Turkey’s status as a Contracting State. Accordingly, in the circumstances of the present case, the Court is not competent to adjudicate on the applicant’s claims concerning her husband’s property located in Turkey. (b)     Non-pecuniary damage – The Court awarded the applicant EUR 10,000 under this head. (See also De Wilde, Ooms and Versyp v. Belgium (Article   50), 2832/66 et al. , 10   March 1972; Barberà, Messegué and Jabardo v.   Spain (Article   50), 10588/83 et al. , 13   June 1994; Papamichalopoulos and Others v.   Greece (Article   50), 14556/89 , 31   October 1995; Vistiņš and Perepjolkins v.   Latvia (just satisfaction), 71243/01, 25   March 2014, Information Note 172 ; Chiragov and Others v.   Armenia (just satisfaction) [GC], 13216/05, 12   December 2017, Information Note   213 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes