LOIZOU v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano
1. The applicant, Mr Pavlos Loizou, is a Cypriot national, who was born in 1961 and lives in Nicosia. He was represented before the Court by M. Sağiroğlu and F. Hansel, lawyers practising in Nicosia. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus. The general context of the property issues arising in this context is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001 IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010). 5. Before the military intervention in northern Cyprus in 1974 the applicant’s family lived in Kyrenia and owned property there. This included the family’s home (“plot 146”), which was registered in the name of the applicant’s mother, and two commercial properties, which were registered in the name of a limited company, Neocles Loizou Successors (“NLS”). The applicant’s parents were the sole shareholders in NLS. According to NLS’s articles of association, the two commercial properties were to be distributed between the applicant and his two brothers if their parents, the shareholders, so wished. 6. The first of the two commercial properties, plot 213, was a groundfloor dwelling which the applicant’s father planned to turn into a supermarket. The second, plot 233, was a supermarket which was in operation until the military intervention began. 7. When his mother died in 1990, the applicant’s father decided to transfer all three properties (that is to say, the dwelling house and the two commercial properties) to the applicant and his brothers. 8. On 6 August 1999 the NLS company, which had in the meantime ceased to be operational, was struck off the relevant register of companies. 9. On 28 January 2003 the applicant, his father and his two brothers lodged an application with the Court, alleging violations of Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 arising from their inability to access their three properties (application no. 4758/03). On 14 December 2010 a Single Judge of the Court declared their application inadmissible because it had been lodged before the domestic remedy available via the IPC had been exhausted and therefore had to be rejected for nonexhaustion of domestic remedies. 10. On 3 December 2010 the applicant’s brothers transferred their shares in the properties to the applicant, making him the sole owner of all of them. 11. The transfer of the ownership of the properties in question is substantiated by certificates showing the history of ownership issued by the Department of Lands and Surveys of the Republic of Cyprus. 12. On 23 September 2011 the applicant filed an application, supported by an affidavit, with the IPC under Law no. 67/2005 (see paragraphs 32-33 below) claiming compensation for all three properties in the amount of 4,700,000 pounds sterling (GBP) and GBP 7,100,000 for the loss of their use. In support of his claim the applicant provided certificates issued by the Land Registry and Surveys Department of the Republic of Cyprus attesting that he was the owner of the properties in question. In the affidavit, the applicant stated that his father had owned the properties in 1974 and that there was no mortgage, restriction or other liability on the properties. 13. The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no. 67/2005 and the relevant IPC Rules (see paragraphs 32-35 below). 14. In a letter dated 22 December 2011 the applicant contended that the “TRNC” Attorney General had failed to provide an opinion concerning his claim within the thirty-day time-limit set out in the relevant provisions on the functioning of the IPC. He argued that the IPC should adopt a default decision on the basis of his claim. 15. At a meeting before the IPC on 10 April 2012 the “TRNC” Attorney General’s representative stated that he had still not received a report concerning the properties that were being claimed by the applicant and he was therefore not in a position to provide an opinion. 16. Further meetings before the IPC scheduled for 12 June and 16 October 2012 were adjourned for the same reason. 17. Meanwhile, the applicant instructed a law firm to represent him in the proceedings before the IPC. 18. On 7 October 2013 the “TRNC” Attorney General submitted his opinion concerning the applicant’s claim. The opinion relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department which stated that − according to their information − plots 213 and 233 had been owned by the NLS company in 1974, and plot 146 by Elli Kika Loizou (the applicant’s mother). In the opinion the view was also expressed that the applicant’s claim was excessive. 19. At a directions hearing on 6 November 2013 the applicant’s representative undertook to provide photographs of the properties and asked the “TRNC” Attorney General to provide the relevant land registry search documents for the properties in question. The “TRNC” Attorney General’s representative asked the applicant to provide birth certificates for him and his parents, certificates from the head of the local community (mukhtar) attesting that the persons who owned the properties in 1974 were the applicant’s parents, and documents concerning the history of ownership of the properties after 1974 and attesting that there were no liabilities attaching to them. 20. The applicant’s representative produced the requested documents on 24 December 2013. 21. At a preliminary hearing before the IPC on 20 November 2014, the “TRNC” Attorney General’s representative and the Housing Undersecretary informed the applicant and the IPC that no offer would be made in respect of the family house (plot 146) unless the claims made in respect of the two commercial properties (plots 213 and 233) were withdrawn. The applicant’s representatives stated that they were trying to find a solution with the “TRNC” authorities concerning issues relating to companies and mortgages. They therefore asked for a month’s adjournment in order to monitor developments on the matter and stated that if a solution was not reached they would withdraw the request relating to the two commercial properties. 22. At a meeting before the IPC on 8 January 2015 the applicant’s representative explained that they were working on the amendments of the relevant law with the “TRNC” authorities and asked for a further adjournment of the examination of the case. 23. A further meeting before the IPC was held on 19 February 2015 at which the applicant was also present. His representative asked for an adjournment, explaining that some additional documents needed to be provided and that there was no progress with the amendment of the relevant law. He also stated that the applicant would withdraw the claim with regard to the commercial properties. 24. On 20 February 2015 the applicant’s representatives forwarded further necessary documents to the IPC. 25. On 23 February 2015 the applicant’s representatives submitted a letter to the IPC stating that, without prejudice, they were withdrawing the applicant’s claim in respect of the two commercial properties (plots nos. 213 and 233). They explained that before 1974 the two properties had been registered as the property of a company whose shareholders were the applicant’s parents. Thereafter, the company had terminated its activities and its properties had been transferred to the shareholders’ children (the applicant and his brothers). Later, the company had been liquidated and now no longer existed as a legal entity. The applicant’s representatives also submitted that as the transfer of properties had occurred after 1974 and as the relationship between the applicant and the company was not defined as one of legal succession within the meaning of Law no. 67/2005, the legislation did not provide the applicant with the possibility of submitting a claim for compensation for that property before the IPC. They considered that this was the reason why the “TRNC’s” representative had refused to make an offer for the compensation claim unless the two commercial properties were withdrawn. Lastly, they argued that their decision to withdraw the claim was in line with the “TRNC” High Administrative Court’s practice in similar cases (see paragraphs 37-38 below), which showed that the IPC could not be considered as a remedy in relation to a claim concerning the two commercial properties. 26. At a meeting before the IPC on 16 April 2015, at which the applicant was also present, his representatives asked for an adjournment of the proceedings in order to consider a settlement offer in the amount of GBP 190,000 made by the “TRNC” authorities. 27. On 17 April 2015 the applicant’s representatives informed the IPC that he would accept the offer. 28. On the same day a meeting was held before the IPC at which the “TRNC” representatives noted that the applicant had withdrawn the claim in respect of the two commercial properties (plots nos. 213 and 233) and reiterated their offer to pay GBP 190,000 in respect of the applicant’s claim concerning the family house (plot 146), which the applicant’s representatives accepted. On the basis of the parties’ settlement, the IPC adopted a decision ordering the “TRNC” authorities to pay the aforementioned amount to the applicant in respect of his claim concerning the family house. 29. On 24 March 2016 compensation in the amount of GBP 190,000 was paid to the applicant. 30. Article 159 § 1 (b) and (c), in so far as relevant, provide as follows: “(b) All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and (c) ... shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.” 31. Article 159 § 4 reads as follows: “In the event of any person coming forward and claiming legitimate rights in connection with the immovable properties included in sub-paragraphs (b) and (c) of § 1 above [concerning, inter alia, all immovable properties, buildings and installations which were found abandoned on 13 February 1975], the necessary procedure and conditions to be complied with by such persons for proving their rights and the basis on which compensation shall be paid to them, shall be regulated by law.” 32. The relevant provisions of Law no. 67/2005 (the English version available at http://www.tamk.gov.ct.tr), which came into effect on 22 December 2005, read as follows: “2. In this Law, unless the context otherwise requires, ... “Applicant” means the person applying to the Commission with a claim of right in respect of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, and in respect to movable property which is claimed to be owned by such person, such property having been abandoned in the North prior to 13 February 1975, being the date of the proclamation of the Turkish Federated State of Cyprus. ... “Immovable property” means immovable property within the scope of subparagraph (b) of paragraph 1 of Article 159 of the Constitution.” “3. The purpose of this Law is to regulate the necessary procedure and conditions to be complied with by persons in order to prove their rights regarding claims in respect to movable and immovable properties within the scope of this Law, as well as, the principles relating to restitution, exchange of properties and compensation payable in respect thereof, having regard to the principle of and the provisions regarding protection of bizonality, which is the main principle of 1977-1979 High level Agreements and of all the plans prepared by the United Nations on solving the Cyprus Problem and without prejudice to any property rights or the right to use property under the Turkish Republic of Northern Cyprus legislation or to any right of the Turkish Cypriot People which shall be provided by the comprehensive settlement of the Cyprus Problem.” “4. (1) All natural or legal persons claiming right to movable and immovable properties that are within the scope of this Law may bring a claim until December 21, 2017 by way of an application in person or through a representative, to the Immovable Property Commission constituted under section 11 of this Law, requesting restitution, exchange or compensation for such property. Applications made to the Commission shall be subject to the Rules made under the Civil Procedure Law and the Rules made under this Law, notwithstanding any other provision to the contrary in any law or legislative instrument, only a fee of 100 TL (one hundred Turkish Liras) shall be paid for each application.” “6. In proceedings before the Commission the burden of proof shall rest with the applicant who must satisfy the Commission beyond any reasonable doubt as to the following in order for a decision to be taken in his favour: (1) That, the movable or immovable property in respect of which rights are claimed is the one claimed in the application. (2) That, in case of immovable property in respect of which the applicant claims rights, the property was registered in his name before 20 July 1974 and/or he is the legal heir of the individual in whose name the immovable property was registered. ...” “8. The Commission, after having heard the arguments of the parties and witnesses, and having examined the documents submitted, shall, within the scope of the purposes of this Law, taking into consideration the below-mentioned matters, decide as to restitution of the immovable property to the person whose right in respect to the property has been established, or to offer exchange of the property to the said person, or decide as to payment of compensation. In cases where the applicant claims compensation for loss of use and/or non-pecuniary damages in addition to restitution, exchange or compensation in return for immovable property, the Commission shall also decide on these issues. ...” “9. Parties have the right to apply to the High Administrative Court against the decisions of the Commission. If the applicant is not satisfied with the judgment of the High Administrative Court, he may apply to the European Court of Human Rights.” “11. (1) For the implementation of this Law, an Immovable Property Commission composed of a President, a Vice-President, and minimum 5, maximum 7 Members, whose qualifications are specified below, shall be established. At least 2 members of the Commission to be appointed shall not be nationals of the Turkish Republic of Northern Cyprus, United Kingdom, Greece, Greek Cypriot Administration or Republic of Turkey. The decisions regarding the appointment of the members shall be published in the Official Gazette. (A) The President, Vice-President and the Members of the Commission shall be appointed by the Supreme Council of Judicature from among persons nominated by the President of the Republic. The President of the Republic shall nominate a number of candidates twice the number of members to be appointed. (B) The President, Vice-President and Members of the Commission may be appointed from among lawyers or from among persons with experience in public administration and evaluation of property. Any persons directly or indirectly deriving any benefit from immovable properties on which rights are claimed by those who had to move from the north of Cyprus in 1974, abandoning their properties, cannot be appointed as members of the Commission. ... (2) The Commission shall convene by minimum two-third majority of the total number of members and shall take decisions by absolute majority of the members attending the meeting, including the President. (3) The term of office of a member not participating in the Commission meetings without a valid reason (illness, official duty abroad, and the like) for three times, may be terminated by the Supreme Council of Judicature upon the request of the President of the Commission. The term of office of the President of the Commission not participating in the Commission meetings without a valid reason (illness, official duty abroad, and the like) for three times, may be terminated by the Supreme Council of Judicature upon the request of the President of the Republic. In other cases, the conditions for the termination of the term of office of a member of the Commission shall be the same as those applied to a Supreme Court Judge. (4) A secretariat shall be established in order to carry out the clerical and administrative work of the Commission. ... (5) All employees of the Commission, including the President, Vice-President and Members, shall be employed as long as their services are required and subject to conditions determined by the Council of Ministers, notwithstanding any provision to the contrary in any other law relating to employment of service, duration of service, age limit, duration of contract, renewal of contract and condition of non-retirement. (6) The President, Vice-President and Members of the Commission shall not hold any other office during their term of office. ...” “12. The President, Vice-President and Members of the Commission established in accordance with the provisions of this Law shall be appointed for a period of 5 years. At the end of this period the President, Vice-President and Members may be re-appointed in the same manner. The President, Vice-President and Members of the Commission shall carry out their duties objectively and independently during their term of office which may only be terminated before the end of term subject to the provisions of section 11, above. No person or authority can give any order or instruction to the President, Vice-President and Members of the Commission. If the function of the Commission is completed before the period envisaged in the Law the terms of office of the Commission members shall be automatically terminated.” “13. The Commission shall have the following duties and powers: (1) To examine and reach a decision on applications made under this Law. (2) To determine the amount and method of payment of compensation. (3) To take necessary measures and decisions in order to conclude the proceedings concerning the amount of compensation to be paid to the applicants following the application of this Law. (4) The Commission, in carrying out its duties and exercising its powers mentioned above, may, if it deems necessary, collect written or oral testimony or hear witnesses. (5) The Commission may require written and oral testimony of any witness for the purpose of resolving any problems that may arise in the application of this Law, either under oath or by way of a declaration. Such evidence under oath, or by declaration shall be identical to that required for testimony before a Court of law. (6) To summon any person residing in the Turkish Republic of Northern Cyprus to attend any meeting of the Commission in order to give testimony or produce any document in his possession and to be questioned as a witness. (7) To compel any person to give evidence or to produce a document, when such person refuses to do so, following a request by the Commission, whether under oath or by way of declaration, if the person concerned does not offer any satisfactory excuse to the Commission for such refusal. However, witnesses may not be compelled to answer any incriminating question and no legal proceedings may be commenced for refusal to do so. (8) The Commission may decide that expenses shall be paid to any persons summoned to give evidence in virtue of the application of this Law.” “14. The decisions of the Commission have binding effect and are of an executory nature similar to judgments of the judiciary. Such decisions shall be implemented without delay upon service on the authorities concerned.” “16. The processes to be carried out in accordance with the provisions of this Law, summons to be issued to witnesses, the procedure for attendance before the Commission and that relating to the hearing shall be subject to the provisions of the Civil Procedure Law.” 33. Further relevant provisions of Law no. 67/2005 are provided in Demopoulos and Others v. Turkey (cited above, §§ 35-37). 34. Section 22 of Law no. 67/2005 provides that Rules for the better implementation of the provisions of that Law may be prepared by the IPC, approved by the “TRNC” Council of Ministers and published in the Official Gazette. 35. In 2006 the IPC adopted its Rules (the English version available at http://www.tamk.gov.ct.tr) regulating details of the procedure before it. 36. The relevant case-law of the “TRNC” Constitutional Court is summarised in Demopoulos and Others (cited above, §§ 38-39). 37. According to the available English translation of the judgment of the “TRNC” High Administrative Court in Eleni Meleagrou v. the Immovable Property Commission (C.13/2011, HAC 124/2009) of 27 June 2011, that court was called upon to examine the complaint of a plaintiff whose restitution claim had been rejected by the IPC on the grounds that her status as shareholder in a company that owned certain property in 1974, was not covered by section 6(2) of Law no. 67/2005. The plaintiff argued that, since she owned the immovable property as a company shareholder, the IPC should have ruled in her favour. 38. The relevant part of the “TRNC” High Administrative Court’s judgment reads: “... [T]he person who could apply to the IPC under Law no. 67/2005 is defined under sections 2 and 6(2) of the Law. The relevant part of section 2, which was drawn out as an interpretation section, is as follows: ‘‘Applicant’ means the person applying to the Commission with a claim of right in respect of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, and in respect to movable property which is claimed to be owned by such person, such property having been abandoned in the North prior to 13 February 1975, being the date of the proclamation of the Turkish Federated State of Cyprus.’ Section 6(2) of the Law is as follows: ‘6(2) That, in case of immovable property in respect of which the applicant claims rights, that the property was registered in his name before 20 July 1974 and/or he is the legal heir of the individual in whose name the immovable property was registered.’ As it can be seen from the definitions cited above, a person who could apply to the IPC for the remedies that are foreseen in the law is an individual in whose name the subject matter property was registered and/or the legal heir of the property owner in whose name the property was registered on the date of 20/7/1974. Viewing the undisputed facts and evidence before us, it can be seen that the owner of the immovable subject matter made up of 14 plots is AkinitaMeleagrous Ltd. The plaintiff has put forward that AkinitaMeleagrous is a family business, she is a shareholder of this company, the aforementioned properties were registered in her name due to this capacity, and these matters should have been taken into account by giving a ruling in favour of restitution. The registered owner of the aforementioned properties on 20/7/1974, AkinitaMeleagrous Ltd., is a company with a legal personality. The aforementioned company continues its legal entity despite having stopped its activities because it has not been struck off the register. The fact that the company transferred the properties it owned to other persons, even if these persons were its shareholders, does not affect the legal status in sections 2 and 6(2) of the law. For this reason it is not possible to give a legal value to the claims of the plaintiff that are outlined above. When considering section 6(2) of Law no 67/2005 as cited above, the finding and ruling of the IPC that the plaintiff does not have a right to apply is not flawed. As a result, the case is dismissed and cancelled. ...”