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FOURTH
SECTION
CASE OF EUGENIA MICHAELIDOU DEVELOPMENTS LTD AND MICHAEL TYMVIOS
v. TURKEY
(Application
no. 16163/90)
JUDGMENT
(Just satisfaction)
(Friendly settlement)
STRASBOURG
22 April 2008
This
judgment is final but it may be subject to editorial revision.
In the case of Eugenia Michaelidou Developments Ltd and Michael
Tymvios v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Stanislav Pavlovschi,
Ljiljana
Mijović,
David Thór Björgvinsson,
Päivi
Hirvelä, judges,
Metin A. Hakki, ad hoc
judge,
and Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16163/90) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot-registered company, Eugenia
Michaelidou Developments Ltd (“the company”) and a
Cypriot national, Dr Michael Tymvios, on 26 January 1990 (“the
applicant”).
- The
Turkish Government (“the Government”) were represented by
their Agent.
- The
applicant had complained principally under Article 1 of Protocol No.
1 that he had been unable to access or enjoy use or possession of
property in the northern part of Cyprus.
- Following
communication of the application to the Government, the case was
transferred to the Court on 1 November 1998 by virtue of Article 5 §
2 of Protocol No. 11 to the Convention. The application was allocated
to the First Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber that would consider
the case (Article 27 § 1 of the Convention) was constituted as
provided in Rule 26 § 1. Mr R. Türmen, the judge elected in
respect of Turkey, withdrew from sitting in the case (Rule 28).
The Government subsequently appointed Mr M. Hakki to sit as an ad
hoc judge (Article 27 § 2 of the Convention and
Rule 29 § 1).
- On
8 June 1999, having obtained the parties' observations, the Court
declared the application admissible.
- On
31 July 2003, the Court adopted its judgment on the merits (“the
principal judgment”), finding, inter alia, a violation
of Article 1 of Protocol No. 1 and reserving the issue of pecuniary
and non-pecuniary damages.
- By
letters dated 22 May 2007, the parties informed the Court that they
had reached a friendly settlement in the above case. The applicant
requested that the case be struck out of the Court's list of cases.
On 7 and 15 February 2008 respectively the applicant and the
Government respectively submitted formal declarations accepting a
friendly settlement of the case. They also submitted correspondence
concerning other matters.
- By
letter dated 3 December 2007, the Registry invited the Government to
clarify the conditional nature of the property transfer envisaged in
the settlement agreement. By letter dated 14 January 2008, the
Government explained, inter alia, that the transfer would have
to be executed in the Republic of Cyprus which was outside their
jurisdiction. This was sent to the applicant for information.
- On
1 February 2008, the Court having changed the composition of its
Sections (Rule 25 § 1), this case was assigned to the
newly-composed Fourth Section.
THE FACTS
- The
first applicant is a private company, incorporated under Cypriot law
and registered in Nicosia in 1986 (“the company”). The
second applicant, a Cypriot national born in 1948 and living in
Nicosia, is the director and major shareholder, and effectively owns
and controls the company. For the purposes of this application, the
second applicant was regarded as “the applicant” (see the
judgment on the merits, cited above, § 21).
- In
April 1988 the company became the co-owner of a substantial amount of
property by way of gift. The property was situated in the village of
Tymvou, in the northern district of Nicosia, located in the “Turkish
Republic of Northern Cyprus” (“TRNC”). It consisted
of 51 plots of land with registration numbers A174, A194, A195, B245,
B121, B238, B321, E262, E266, E268, E279, E291, E292, F221, F222,
F301, F308, F314, F318, G102, G162, G193, G246, G288, G298, G299,
G407, G411, G414, G415, G418, H17, H18, H26, H76, H87, H90, H98,
H109, H112, H117, H130, H136, H144, H179, J12, J13, J32, J38, J46 and
J55.
- On
3 April 1996 the property was transferred by way of gift to the
applicant. The applicant stated that he had been prevented by the
Turkish armed forces from having access to the property and using and
enjoying possession of it.
THE LAW
- On
7 February 2008 the Court received the following declaration signed
by the applicant:
“I, Michael Tymvios, the applicant, declare that I
have reached agreement with the Government of Turkey according to the
terms of a settlement dated 21 May 2007 which provides for the
payment of one million United States dollars to the applicant and the
exchange of property insofar as the exchange decision can be executed
within the control and power of the authorities of the “Turkish
Republic of Northern Cyprus”.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be payable
within three months from the date of notification of the judgment by
the Court pursuant to Article 39 of the European Convention on Human
Rights. From the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points.
I accept the proposal and waive any further claims
against Turkey in respect of the facts of this application. I declare
that this constitutes a final resolution of the case.
This declaration is made in the context of a friendly
settlement which the Government and I have reached.
I further undertake not to request that the case be
referred to the Grand Chamber under Article 43 § 1 of the
Convention after delivery of the Court's judgment.”
- On
15 February 2008 the Court received the following declaration from
the Government:
“I declare that the Government of Turkey have
reached agreement with the applicant, Dr Michael Tymvios, according
to the terms of a settlement dated 21 May 2007 which provides for the
payment of one million United States dollars to the applicant and the
exchange of property insofar as the exchange decision can be executed
within the control and power of the authorities of the “Turkish
Republic of Northern Cyprus”. This declaration is made in the
context of a friendly settlement which the Government and the
applicant have reached.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be payable
within three months from the date of notification of the judgment by
the Court pursuant to Article 39 of the European Convention on Human
Rights. In the event of failure to pay this sum within the said
three-month period, the Government undertake to pay simple interest
on it, from expiry of that period until settlement, at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points. The payment will
constitute the final resolution of the case.
The Government further undertake not to request that the
case be referred to the Grand Chamber under Article 43 § 1 of
the Convention.”
- The
Court welcomes the agreement reached between the parties (Article 39
of the Convention) and takes note of the explanation given by the
Government concerning the conditional nature of the agreement insofar
as it concerned a possible exchange of property. It is satisfied that
the settlement is based on respect for human rights as defined in the
Convention or its Protocols (Article 37 § 1 in fine of
the Convention and Rule 62 § 3 of the Rules of Court) and that
it is equitable within the meaning of Rule 75 § 4 of the
Rules.
- The
Court also notes that the applicant and the Government have made
submissions concerning measures allegedly taken by the Government of
Cyprus, an intervening party, against the applicant in the context of
bankruptcy proceedings. Given the delay in the disposal of this case,
which the Court regrets, it cannot justify any further adjournment.
To the extent therefore that any allegations are made of
interferences with property or other rights under the Convention and
its Protocols, these would fall to be examined rather in an
application against the respondent Government alleged to be
responsible for any alleged violations of the provisions of the
Convention or its Protocols and having due regard to the requirements
of Articles 34 and 35 of the Convention. Further, insofar as the
Court has received submissions from the Official Receiver, Ministry
of Commerce, Tourism and Industry in the Republic of Cyprus drawing
attention to the applicant's bankruptcy and questioning his ability
to enter into any settlement or receive any compensation, it would
only remark that the applicant's status as a bankrupt may be of
relevance on a domestic level but does not affect the present
application which was introduced validly under former Article 25 of
the Convention and to which no objection was taken by the intervening
Government concerning any lack of standing by the applicant to pursue
his property claims.
- Accordingly,
the remainder of this case should be struck out of the list.
FOR
THESE REASONS, THE COURT UNANIMOUSLY
- Decides to strike the remainder of the case out
of its list of cases;
- Takes note of the parties' undertaking not to
request a rehearing of the case before the Grand Chamber.
Done in English, and notified in writing on 22 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
