KEMAL (AKA BALCI) v. CYPRUS
Inadmissible
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
The applicant, born in 1941, is a Cypriot citizen of Turkish-Cypriot descent, resident in Nicosia. A charitable trust arrangement of the type known as “vakf” was set up in the early twentieth-century by Hatice and Siddika Hanimlar concerning 20 immovable properties was set up to administer 23% of the income for charitable purposes, 15% for the families who had worked for the Hanimlar family and 62% for the Hanimlar descendants in perpetuity. The applicant claims to be a beneficiary of the said trust as heir of her father who died in 1985. Her father had received income from the trust until 1974 when the Turkish forces invaded Cyprus. Her mother had been the last “mutevelli” or administrator of the trust until her death in 1968, after which the High Council of Evkaf (the administrative body supervising vakf property) took over the administration of the trust. On 30 May 2005, the applicant requested the Attorney-General’s permission to commence legal proceedings against the Evkaf for breach of trust in that no income had been paid to beneficiaries and to have herself appointed as the mutevelli of the trust, and for the property to be vested in her name as the mutevelli. On 21 September 2005, the Attorney-General refused to give consent. On 14 April 2006, the applicant instituted proceedings in the Supreme Court without consent from the Attorney-General, claiming appointment as mutevelli and vesting of the properties in her name and naming Evakf as defendant. The Attorney-General filed opposition, raising issues as to the jurisdiction of the court in the absence of his consent. He also disputed that the applicant had any right to be appointed mutevelli, there being other beneficiaries who could make that claim also. A hearing was held on 20 December 2007. On 17 January 2008, the Supreme Court rejected the applicant’s claims, principally because of the lack of consent given by the Attorney-General. It noted that vakf property was now vested in the Custodian of Turkish-Cypriot properties pursuant to Law 139/1991 and that the Custodian had possession of all properties where the Turkish-Cypriot owners did not live in the Republic. The applicant’s lawyer had raised allegations during the hearing claiming that the Custodian if now regarded as the effective administrator of the trust property should be replaced due to bad administration but this allegation did not fall to be examined as no grounds seeking remedies on this basis had been properly lodged. On 27 February 2008, the applicant served notice of appeal against the judgment. After a hearing on 12 February 2010, the Supreme Court rejected the appeal in a judgment dated 18 May 2010, upholding the reasoning of the previous decision. The relevant case-law and laws are set out in Kazali and Others v Cyprus (no. 49247/08 et al, §§ 34-100, decision of 6 March 2012).