Last Updated on April 27, 2019 by LawEuro
Communicated on 19 March 2019
SECOND SECTION
Application no. 41120/17
K.V. MEDITERRANEAN TOURS LIMITED
against Turkey
lodged on 25 May 2017
STATEMENT OF FACTS
The applicant, K.V. Mediterranean Tours Limited, is a company registered in Nicosia, Cyprus. It is represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant company is the owner of a building complex located in the fenced up area of Famagusta in the “Turkish Republic of Northern Cyprus” (“TRNC”). Its shareholders and directors are of Greek Cypriot origin.
The applicant company abandoned its property following the Turkish military intervention in 1974.
On 23 July 2010 the applicant company applied to the Immovable Property Commission (“IPC”) claiming compensation for the loss of use of its property with the relevant statutory interest. It also claimed restitution of the immovable property in question, moral damages, statutory interest and legal costs.
As the relevant “TRNC” authorities did not reply to the applicant company’s claim, on 1 November 2010 the applicant company applied for a judgment in default.
The IPC adjourned the examination of the case numerous times.
At a preliminary hearing on 23 October 2012 the applicant company complained of delays in the processing of the case.
At the same hearing the “TRNC” representative indicated that the preliminary assessment of the case suggested that the property in question was registered in the name of Abdullah Pasha Foundation, which was managed by the Evcaf Administration.
On 23 November 2012 the IPC found that the Evcaf Administration was possibly affected by the applicant company’s claim and that it should thus be admitted to the proceedings as a third party.
On 6 December 2012 the applicant company complained to the “TRNC” Administrative Court of the unjustified adjournments and delays of the proceedings before the IPC. It also challenged the acceptance of the Evcaf Administration as a third party in the proceedings.
On 6 November 2015 the Administrative Court found that the Evcaf Administration could not be admitted as a third party to the proceedings on the grounds that it would render the restitution of the property to the applicant company impossible. The Administrative Court also held that it did not have jurisdiction to rule on the complaint of adjournments and delays of the proceedings before the IPC.
The parties challenged this decision before the “TRNC” High Administrative Court, the “TRNC” authorities and the Evcaf Administration in relation to the decision not to accept Evcaf as a party to the proceedings, and the applicant company in relation to the decision on the adjournments and delays of the proceedings.
On 29 November 2016 the High Administrative Court found that it was solely within its jurisdiction to rule on all matters concerning the proceedings before the IPC. As regards the applicant company’s complaint of adjournments and delays of the proceedings, the High Administrative Court held that these could not be subject to a judicial review.
As regards the “TRNC” authorities’ and the Evcaf Administration’s complaint, the High Administrative Court referred to a judgment of the Famagusta District Court of 27 December 2005 according to which the current registered owner of the property in issue was the Evcaf Administration. The High Administrative Court therefore held that the Evcaf Administration should be admitted as a party to the proceedings.
The proceedings before the IPC are still pending.
COMPLAINTS
The applicant company complains of the protracted length and ineffectiveness of the proceedings before the IPC, as a result of which it has been unable to vindicate its property claim for a prolonged period of time. It further complains of its impossibility to influence the fact that the Evcaf Administration was accepted as a third party to the proceedings. It also complains of a lack of impartiality of the High Administrative Court (appeal panel) on the grounds that its judges directly or indirectly use Greek Cypriot properties in the “TRNC”.
Further, the applicant company complains of a structural deficiency of the IPC remedy in providing relief for property located in the Famagusta area (fenced up area), and lack of an effective remedy with regard to the inclusion of Evcaf Administration in the proceedings as a third party, which effectively blocks the restitution of property. The applicant company also complains of a lack of an effective remedy for the inordinate length of proceedings and delays before the IPC.
Lastly, the applicant company alleges discrimination on the grounds of the place of its registration and Greek Cypriot origin of its shareholders and directors.
The applicant company relies on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Has there been a breach of the applicant company’s rights under Article 6 § 1 of the Convention with regard to: (1) the admission of the Evcaf Administration as a third party in the proceedings before the IPC, and (2) alleged lack of impartiality of the High Administrative Court (appeal panel) judges?
2. Has there been a breach of the applicant company’s rights under Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1 in relation to the length of proceedings before the IPC (see, inter alia, Joannou v. Turkey, no. 53240/14, 12 December 2017)?
3. Did the applicant company have at its disposal an effective remedy for its complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (either alone or taken in conjunction with Article 14 of the Convention), as required by Article 13 of the Convention?
In particular, (1) is the IPC remedy an effective remedy for the property claims concerning Greek Cypriot property located in the Famagusta area (fenced up area); (2) does the inclusion of the Evcaf Administration as a third party to the proceedings before the IPC make the IPC remedy ineffective for Greek Cypriot property claims, and did the applicant company have an effective remedy to challenge the inclusion of the Evcaf Administration as a third party in the proceedings; and (3) did the applicant company have an effective remedy for the delays and adjournments of the proceedings before the IPC?
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