ΤΟ ΕΔΑΔ παραπεμπει την Εκκλησια της Κύπρου στην επιτροπη αποζημιώσεων

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66611/09
by CHRYSOSTOMOS
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 4 January 2011 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 Section Registrar,

Having regard to the above application lodged on 26 November 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Chrysostomos II, is a Cypriot national, born in 1945. He is Archbishop of the Greek Orthodox Autocephalous Church of Cyprus and New Justinian and states that he is acting on behalf of the above Church as well as on behalf of other persons not listed or identified in the application form, namely the church’s parishioners. The applicant lives in Nicosia. He is represented before the Court by Mr A. Angelides, a lawyer practising in Nicosia.

The facts of the case, as submitted by the applicant, may be summarised as follows:

In the course of the events in northern Cyprus of 1974, the applicant states that they had to leave behind property and flee places of worship. The property claimed consists of immovable property (monasteries, chapels, churches and graveyards etc) and movable property (ecclesiastical vessels, grails etc). Since 1974 the applicant states that they have been prevented from enjoying the church’s property. The applicant further claimed that many properties had been destroyed, vandalised, looted or stripped of their religious function and are now used as Muslim religious sites, museums, bars, clubs, barns etc. Ecclesiastical vessels etc have been destroyed or sold.

COMPLAINTS

The applicant complained of a violation of Article 1 of Protocol No. 1 about lack of access and enjoyment of the property mentioned above following the invasion in 1974 by Turkish armed forces.

The applicant complained under Article 9 of the Convention that he, the Church and its parishioners have been continuously prevented from holding religious services in the religious sites situated in northern Cyprus and belonging to the Church. The applicant further complained under Article 11 of the Convention that their right to assembly has been continuously violated.

The applicant complained under Article 3 that, taken together with racial and religious discrimination, the consistency and long period of time of deprivation of access to property and the other substantive claims amount to inhuman and degrading treatment and torture.

Finally, the applicant complained under Article 14 of the Convention that the breaches of the above Articles have been committed exclusively to the detriment of Greek-Cypriots and/or followers of the Greek-Orthodox Church.

THE LAW

A. Standing

The applicant has named himself as the applicant in the application form. He has stated that he acts also on behalf of the parishioners of his Church. The Court observes however that he has neither included a list of the names of those concerned, nor any letters of authority which state that these persons authorise him to act on their behalf. It also appears that the title deeds submitted with the application in many cases identify individual local churches and religious bodies as owning the property without reference to the applicant or his Church.

In the circumstances, the Court does not consider that the parishioners, an unlisted and unidentified group of persons, can appropriately be regarded as applicants in the present application. It accepts, for the purposes of this application, that the applicant has the requisite authority to act on behalf of the Church as an entity and that he thus has legal capacity to make property and other claims on its behalf and on behalf of those individual churches and religious bodies under its umbrella.

B. Concerning property issues (Article 1 of Protocol No. 1)

1. Insofar as the applicant complains of interference with property rights as regards lack of access to property belonging to his Church or its subordinate entities in the northern part of Cyprus invoking 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 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 neither the applicant, nor any other duly authorised representative of the Church or individual churches or bodies for which title deeds have been provided have made use of this mechanism. Nor have any claims been made as regards movable property, in respect of which the IPC also has competence to examine claims (see Demopoulos, cited above, §§ 35-37). The 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.

2. While the applicant has not expressly invoked Article 1 of Protocol No. 1 as regards destruction and theft of property, he has claimed in his application form in general terms that property belonging to the Church has been subject to vandalism, destroyed and stolen. Insofar as these acts took place prior to the date of ratification of the Convention and Protocols by the respondent State on January 1987, the Court has no temporal jurisdiction to consider these complaints. No specific information has been provided as regards any such acts which might have occurred within the Court’s temporal jurisdiction or details given which might have established State responsibility for the vandalism or thefts concerning property established as belonging to the applicant or indicated that there had been compliance with the requirements of Article 35 § 1 as regarded exhaustion of domestic remedies and the six-month time-limit.

This part of the application must therefore be rejected globally as failing to disclose any issue under the Convention pursuant to Article 35 of the Convention.

C. Complaints concerning Articles 9 and 11 of the Convention

The applicant has also complained under the above provisions which guarantee respectively freedom of religion and freedom of assembly that the Church has been unable to carry out religious services on the properties mentioned above. The Court notes that these complaints are closely linked to those raised above concerning the inability to enjoy the property concerned. It has found that domestic remedies in this regard have not been exhausted before the IPC which is able both to order restitution of property and to award pecuniary and non-pecuniary damages in respect of any loss of enjoyment of the property. In the circumstances therefore, this part of the application raises no separate issue.

D. Remaining complaints

Having regard to the facts of the cases and its findings under Article 1 of Protocol No. 1 and Articles 9 and 11 of the Convention, the Court considers that no further issue arises for examination concerning the remaining complaints made by the applicant under Articles 3, 13 and 14 of the Convention (see Demopoulos, cited above, §§ 139-143).

For these reasons, the Court unanimously

Declares the application inadmissible.

     Fatoş Aracı                                                                       Nicolas Bratza
Deputy Registrar                                                                       President