Application No. 25366/94
                      by POLYCARPOU BROS Ltd.
                      against Cyprus

      The European Commission of Human Rights sitting in private on
15 January 1996, the following members being present:

           MM.   S. TRECHSEL, President
                 H. DANELIUS
                 C.L. ROZAKIS
                 E. BUSUTTIL
                 A.S. GÖZÜBÜYÜK
                 A. WEITZEL
                 J.-C. SOYER
                 H.G. SCHERMERS
           Mrs.  G.H. THUNE
           Mr.   F. MARTINEZ
           Mrs.  J. LIDDY
           MM.   J.-C. GEUS
                 M.P. PELLONPÄÄ
                 M.A. NOWICKI
                 I. CABRAL BARRETO
                 B. CONFORTI
                 N. BRATZA
                 I. BÉKÉS
                 J. MUCHA
                 E. KONSTANTINOV
                 D. SVÁBY
                 G. RESS
                 A. PERENIC
                 C. BÎRSAN
                 P. LORENZEN
                 K. HERNDL

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 30 August 1994 by
POLYCARPOU BROS Ltd. against Cyprus and registered on 5 October 1994
under file No. 25366/94;

      Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;

      Having regard to :

-     the Commission's decision of 3 April 1995 to communicate the
      application ;

-     the observations submitted by the respondent Government on
      31 July 1995 and the observations in reply submitted by the
      applicant on 6 October 1995 ;

      Having deliberated;

      Decides as follows:


      The applicant is a company registered in Cyprus. In the
proceedings before the Commission it is represented by Mr. Achilleas
Demetriades, a barrister practising in Nicosia, Cyprus.

      The facts of the case, as they have been submitted by the
parties, may be summarised as follows:

A.    Particular circumstances of the case

      On 10 May 1974 an agreement was drawn up for the purchase by the
applicant company of two plots of land (referred to as plots No. 5 and
21) situated in Finigoudia in Engomi and belonging to the Holy
Monastery of Kykkos, at the price of 42,487 Cyprus pounds. The document
was signed by the representatives of the applicant company, but not by
the representatives of the monastery.

      On 2 June 1974 the applicant company paid 500 pounds to the
monastery, receipt of which was acknowledged by the monastery.

      On 28 May 1985 the monastery wrote to the applicant company
claiming payment of the outstanding sum. It also warned the applicant
company that failure to do so would entail the invalidation of the
agreement of 10 May 1974. The monastery sent the applicant company
reminders on 31 December 1989 and 26 September 1990. On
7 November 1990, the applicant company sent a letter to the monastery
by which it contested its obligation to pay interest on its debt
invoking the legislation concerning persons affected by the Turkish
invasion of July 1974.

      On 31 December 1990, 30 June 1991 and 31 December 1991 the
monastery sent further reminders to the applicant company. On
6 March 1992 the applicant company wrote to the monastery asking the
monastery to recalculate the sum owed in the light of law 24/79 which
had frozen the applicant company's debts. The monastery sent the
applicant company another reminder on 9 July 1992.

      On 11 January 1993 the representatives of the applicant company
addressed a letter to the monastery offering to pay the outstanding
amount and asking for the transfer of the ownership of the two plots
of land within thirty days. The applicant company claimed (a) that its
debt to the monastery remained frozen as from 14 August 1974 by virtue
of law 24/79 and (b) that the agreed total surface of the two plots of
land was 21,000 square feet and not 15,450 square feet, as it had been
noted in the margin of the above-mentioned draft agreement without its

      In a further letter addressed to the monastery on 8 March 1993
the applicant company offered to pay interest on its debt,
notwithstanding the provisions of law 24/79. On 27 July 1993 the
applicant company proposed to the monastery the appointment of an
expert who would estimate the current value of the two plots of land;
it also offered to pay his fees.

      On 29 December 1994 the applicant company renewed its offer
declaring at the same time its intention to institute legal proceedings
against the monastery. In this connection it requested the monastery's
consent to the institution of such proceedings in accordance with
Article 23 para. 9 of the Constitution.

      In a letter dated 4 January 1995 addressed to the applicant
company the monastery claimed (a) that no contract had ever been
concluded, (b) that the applicants had paid the sum of 500 pounds with
a view to reserving two of the plots (No. 5 and 21) into which the land
of the monastery in Finigoudia would have been divided if the monastery
had been successful in obtaining the necessary planning permission,
(c) that the plans of the monastery to sell its land in Finigoudia were
cancelled as a result of its failure to obtain such a permission and
(d) that the sum of 500 pounds had always been at the disposal of the
applicant company, which had refused to recover it. The monastery
further informed the applicant company that it did not consent to the
institution of proceedings against it.

      On 6 October 1995 the applicant company wrote to the monastery
claiming that the document drawn up on 10 May 1974 was not a draft but
a final agreement. It also claimed that it was standard practice for
the monastery not to sign the agreements it concluded. The applicant
company further referred to the monastery's letter of 28 May 1985 by
which the monastery had accepted the existence of an agreement.

B.    Relevant domestic law

      Article 23 of the Constitution of Cyprus provides as follows:

      "1.  Every person, alone or jointly with others, has the
      right to acquire, own, possess, enjoy or dispose of any
      movable or immovable property and has the right to respect
      for such right.


      2.   No deprivation or restriction or limitation of any
      such right shall be made except as provided in this

      3.   Restrictions or limitations which are absolutely
      necessary in the interest of the public safety or the
      public health or the public morals or the town and country
      planning or the development and utilization of any property
      to the promotion of the public benefit or for the
      protection of the rights of others may be imposed by law on
      the exercise of such right.

           Just compensation shall be promptly paid for any such
      restrictions or limitations which materially decrease the
      economic value of such property: such compensation to be
      determined in case of disagreement by a civil court.

      4.   Any movable or immovable property or any right over or
      interest in any such property may be compulsorily acquired
      by the Republic or by a municipal corporation or by a
      Communal Chamber for the educational, religious, charitable
      or sporting institutions, bodies or establishments within
      its competence and only from the persons belonging to its
      respective Community or by a public corporation or a public
      utility body on which such right has been conferred by law,
      and only-

           (a) for a purpose which is to the public benefit and
      shall be specially provided by a general law for compulsory
      acquisition which shall be enacted within a year from the
      date of the coming into operation of this Constitution; and

           (b) when such purpose is established by a decision of
      the acquiring authority and made under the provisions of
      such law stating clearly the reasons for such acquisition;

           (c) upon the payment in cash and in advance of a just
      and equitable compensation to be determined in case of
      disagreement by a civil court.


      7.   Nothing in paragraphs 3 and 4 of this Article
      contained shall affect the provisions of any law made for
      the purpose of levying execution in respect of any tax or
      penalty, executing any judgment, enforcing any contractual
      obligation or for the prevention of danger to life or


      9.   Notwithstanding anything contained in this Article no
      deprivation, restriction or limitation of the right
      provided in paragraph 1 of this Article in respect of any
      movable or immovable property belonging to any See,
      monastery, church or any other ecclesiastical corporation
      or any right over it or interest therein shall be made
      except with the written consent of the appropriate
      ecclesiastical authority being in control of such property
      and the provisions of paragraphs 3, 4, 7 and 8 of this
      Article shall be subjected to the provisions of this

      Provided that restrictions or limitations for the purposes
      of town and country planning under the provisions of
      paragraph 3 of this Article are exempted from the
      provisions of this paragraph."

      In its decision of 21 December 1961 in the case of Evlogimenos
and the Republic the Supreme Court considered that the right of
property safeguarded by Article 23 of the Constitution was not an
abstract right, but a right as defined and regulated by the law
relating to civil law rights in property. Deprivations  or restrictions
or limitations imposed under a law regulating civil rights in property
were not contrary or inconsistent with Article 23, because Article 23
para. 2 was inapplicable to provisions of law regulating such rights.

      These principles were re-affirmed in the Supreme Court's
decisions of 19 April 1962 in Re Ali Ratip of Ktima and 28 June 1967
in the case of Chimonidis v. Mangli.


1.    The applicant company complains of a violation of Article 6
para. 1 of the Convention in that it is denied access to the courts for
the determination of its civil rights under the contract it has
concluded with the monastery.

2.    The applicant company complains of a violation of its rights
under Article 1 of Protocol No. 1 in that it is prevented from
obtaining possession of the plots of land it has agreed to purchase,
by virtue of Article 23 para. 9 of the Constitution which grants church
bodies judicial immunity.

3.    The applicant company also complains under Article 13 of the
Convention that it does not have any effective remedy against the
violation of its rights under the Convention, because all domestic
courts are bound by the Constitution.

4.    The applicant company finally complains under Article 14 of the
Convention that it is discriminated against on religious grounds in
that its opponent is in a more favourable position by virtue of being
a church body.


      The application was introduced on 30 August 1994 and registered
on 5 October 1994.

      On 3 April 1995 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their written observations on admissibility and merits.

      The Government's observations were submitted on 31 July 1995. On
6 October 1995 the applicant company submitted observations in reply.



      The applicant company complains that, by virtue of Article 23
para. 9 of the Constitution, it cannot sue the monastery in order to
obtain possession of the plots of land it has agreed to purchase. It
claims that this amounts to a violation of its rights under Articles 6
para. 1, 13 and 14 (Art. 6-1, 13, 14) of the Convention and Article 1
of Protocol No. 1 (P1-1).

      The Commission considers that the application centres upon the
complaint concerning access to court under Article 6 para. 1
(Art. 6-1) of the Convention, which, insofar as relevant, provides the

      "In the determination of his civil rights and obligations ...
      everyone is entitled to a ... hearing ...  by a tribunal ... ."

      The Government submit that the applicant is not prevented by
Article 23 para. 9 of the Constitution from initiating civil
proceedings against the monastery or from enforcing any judgment that
may ensue. There is no case-law to the effect that the consent of the
Church is required before it can be sued or have a court decision
enforced against it in civil law matters. On the contrary, the Supreme
Court of Cyprus has repeatedly held that Article 23 of the Constitution
cannot be understood as being intended to interfere with matters of
civil law, such as rights to property conferred by a law regulating
civil law rights. As a result, the deprivation of the right to property
which may be effected by virtue of rules protecting rights arising
under a contract does not fall within the scope of Article 23 and
cannot be affected by any of the provisions of Article 23, including
the provisions of para. 9. It follows that the applicant should have
tried to exhaust domestic remedies before applying to the Commission.

      The applicant company does not agree with the interpretation
given to Article 23 of the Constitution by the Government. It relies
on the express wording of Article 23 para. 7, to which Article 23
para. 9 refers and stresses that Article 23 para. 7 refers in
unambiguous terms to the enforcement of contractual obligations.
Moreover, the contractual relationship at issue differs from other
contractual relationships because the Constitution has granted special
rights to one of the two parties. It is noteworthy that the monastery
has already relied on Article 23 para. 9 of the Constitution to refuse
its consent for the action intended against it.

      The Commission recalls that, in accordance with its case-law,
where doubts exist as to the effectiveness of a domestic remedy, that
remedy must be tried (No. 6271/73, Dec. 13.5.76, D.R. 6 p. 62;
No. 9984/82, Dec. 17.10.85, D.R. 44 p. 54).

      The Commission takes note of the case-law of the Supreme Court
concerning deprivations, restrictions and limitations imposed under a
law regulating civil rights in property and their compatibility with
Article 23 of the Constitution. It considers that it has not been
established that the refusal of the monastery to consent to the
institution of proceedings against it would effectively bar under
Article 23 para. 9 of the Constitution the applicant company from suing
the monastery under the alleged contract. It follows that the applicant
company should have instituted proceedings before the domestic courts,
before applying to the Commission.

      In these circumstances, the Commission, moreover, considers that
it need not address the purely theoretical issue of whether the
monastery could refuse under Article 23 para.  9 of the Constitution
to comply with a decision which might have been issued against it if
the applicant company had instituted successful proceedings under the

      In the light of all the above, the Commission concludes that the
applicant company has not exhausted domestic remedies under Article 26
(Art. 26) of the Convention in connection with its complaint concerning
lack of access to a court. The same holds true in respect of the
applicant company's remaining complaints.

      It follows that the application must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.

      For these reasons, the Commission, by a majority,


Secretary to the Commission       President of the Commission

      (H.C. KRÜGER)                    (S. TRECHSEL)