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FOURTH
SECTION
CASE OF JOSEPHIDES v. TURKEY
(Application
no. 21887/93)
JUDGMENT
(merits)
STRASBOURG
22
September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Josephides v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Işıl Karakaş, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21887/93) 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 national, Mr Christos Josephides
(“the applicant”), on 30 December 1992.
- The
applicant, who is a lawyer, presented his own case before the Court.
The Turkish Government (“the Government”) were
represented by their Agent, Mr Z.M. Necatigil.
- The
applicant alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived him of his properties.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
a decision of 24 August 1999 the Court declared the application
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
- The
applicant was born in 1944 and lives in Athienou.
- The
applicant alleged to be the owner of 11 plots of land situated in the
northern part of Cyprus. His properties were registered as follows:
(a)
Nicosia/Piroi, plot no. 124, sheet/plan 31/26, registration no. 4475,
share: ½, area: 25,753 square metres (m²);
(b)
Larnaca/Athienou, plot no. 607, sheet/plan 31/46, registration
no. 31803, share: whole; area: 2,342 m²;
(c)
Larnaca/Athienou, plot no. 670, sheet/plan 31/46, registration
no. 23140, share: whole; area: 1,673 m²;
(d)
Larnaca/Athienou, plot no. 671, sheet/plan 31/46, registration
no. 25893, share: whole; area: 1,673 m²;
(e)
Larnaca/Athienou, plot no. 635, sheet/plan 31/46, registration
no. 23158, share: whole; area: 2,676 m²;
(f)
Larnaca/Athienou, plot no. 291, sheet/plan 31/54, registration
no. 25885, share: whole; area: 11,706 m²;
(g)
Larnaca/Athienou, plot no. 339, sheet/plan 31/43, registration
no. 25887, share: whole; area: 6,680 m²;
(h)
Larnaca/Athienou, plot no. 338, sheet/plan 31/43, registration
no. 23126, share: whole; area: 6,666 m²;
(i)
Larnaca/Athienou, plot no. 82, sheet/plan 31/43, registration
no. 29092, share: whole; area: 5,017 m²;
(j)
Larnaca/Athienou, plot no. 122, sheet/plan 31/36, registration
no. 23392, share: 1/2; area: 12,041 m²;
(k)
Larnaca/Arsos, plot no. 59, sheet/plan 32/25, registration no. 842,
share: 1/2; area: 22,409 m².
- In
support of his claim to ownership, the applicant produced copies of
the original title deeds and a cadastral plan on which his lands were
marked in red. He specified that the plots of land described in
paragraph 8 (a) and (k) above belonged to his father, who had
transferred them to him on 10 April 1997 and 23 June 1995
respectively. Plot (a) was land which could be developed, located 150
metres from the road connecting Nicosia and Larnaca.
- The
applicant had been forced to leave his properties by reason of the
1974 Turkish invasion, his lands being located in the area which was
under the occupation and overall control of the Turkish military
authorities. The latter had prevented him from having access to and
from using his lands. He had been continuously prevented from
entering the northern part of Cyprus.
- In
December 1992 the applicant took part in a peaceful march to the
Saint Epiphanios church, which was located in the occupied part of
Cyprus in the vicinity of the Athienou village.
- On
8 December 1992 the Athienou Town Council invited the Ambassador of
Turkey to the Council of Europe to request the Turkish Government to
give the Turkish military forces in Cyprus instructions aimed at
permitting the peaceful and free accomplishment of the said march. On
13 December 1992 the applicant and approximately 200 other persons
left Athienou and reached the UN buffer zone, where they were stopped
by the UN forces in Cyprus (UNFICYP). UNFICYP officials informed the
applicant and the other demonstrators that in the absence of an
authorisation from the Turkish-Cypriot authorities their security
could not be guaranteed. The applicant and his fellow demonstrators
had to abandon their plan to reach the Saint Epiphanios church.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility ratione
loci and ratione temporis, non-exhaustion of domestic
remedies and lack of victim status. The Court observes that these
objections are identical to those raised in the case of Alexandrou
v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009),
and should be dismissed for the same reasons.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that since July 1974, Turkey had prevented him
from exercising his right to the peaceful enjoyment of his
possessions.
He
invoked Article 1 Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government submitted that the properties claimed by the applicant
were situated outside the jurisdiction of Turkey and that the latter
had no knowledge of them. In any event, the applicant had not
indicated the locality where his alleged possession was situated and
had confined himself to providing certain registration numbers. In
these circumstances, it was not possible for the authorities of the
“Turkish Republic of Northern Cyprus” (the “TRNC”)
to check the reality of the applicant's claims, which were
unsubstantiated. Moreover, the applicant's “attempt” to
enter the northern part of Cyprus had been a propaganda ploy. He and
the other demonstrators were aware that the UN forces in Cyprus would
not have allowed them to cross the UN buffer zone.
- In
any case, the alleged interference with the applicant's property
rights could not be seen in isolation from the general political
situation in Cyprus and had in any event been justified in the
general interest.
2. The applicant
- The
applicant noted that his claim to ownership was based on copies of
the relevant title deeds. He relied on the principles laid down by
the Court in the case of Loizidou v. Turkey
((merits), Reports of Judgments and Decisions 1996-VI,
18 December 1996).
B. The third-party intervener
- The
Government of Cyprus observed that the “TRNC” authorities
were in possession of all the records of the Department of Lands and
Surveys relating to the title to properties in northern Cyprus. It
was therefore the duty of the respondent Government to produce them.
- The
third-party intervener further noted that the present case was
similar to that of Loizidou ((merits), cited above), where the
Court had found that the loss of control of property by displaced
persons arose as a consequence of the occupation of the northern part
of Cyprus by Turkish troops and the establishment of the “TRNC”,
and that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
C. The Court's assessment
- The
Court first notes that the documents submitted by the applicant (see
paragraph 9 above) provide prima facie evidence that he has a
title of ownership over the properties at issue. As the respondent
Government failed to produce convincing evidence in rebuttal, the
Court considers that the applicant had a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court recalls that in the aforementioned Loizidou case
((merits), cited above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact
that the applicant has been refused access to the land since 1974,
she has effectively lost all control over, as well as all
possibilities to use and enjoy, her property. The continuous denial
of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference
cannot, in the exceptional circumstances of the present case to which
the applicant and the Cypriot Government have referred, be regarded
as either a deprivation of property or a control of use within the
meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first
sentence of that provision as an interference with the peaceful
enjoyment of possessions. In this respect the Court observes that
hindrance can amount to a violation of the Convention just like a
legal impediment.
64. Apart from a passing reference to the
doctrine of necessity as a justification for the acts of the 'TRNC'
and to the fact that property rights were the subject of
intercommunal talks, the Turkish Government have not sought to make
submissions justifying the above interference with the applicant's
property rights which is imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
- In
the case of Cyprus v. Turkey ([GC], no. 25781/94,
ECHR 2001–IV) the Court confirmed the above conclusions (§§
187 and 189):
“187. The Court is persuaded that both
its reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation
of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus are being denied
access to and control, use and enjoyment of their property as well as
any compensation for the interference with their property rights.”
- The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus v.
Turkey cases (op. cit.; see also Demades v. Turkey
(merits), no. 16219/90, § 46, 31 July 2003).
- Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1 to the Convention by virtue of the fact that the applicant was
denied access to and control, use and enjoyment of his properties as
well as any compensation for the interference with his property
rights.
III. ALLEGED VIOLATION OF ARTICLES 1 AND 18 OF THE
CONVENTION AND OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION
WITH ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained of a violation of the general obligation to
respect human rights enshrined in Article 1 of the Convention.
He also invoked Article 18 of the Convention, alleging that the
restrictions on his rights had not been applied for the purposes for
which they had been prescribed. He further complained of a violation
under Article 14 of the Convention on account of discriminatory
treatment against him in the enjoyment of his rights under Article 1
of Protocol No. 1. He alleged that this discrimination had been based
on his national origin and religious beliefs.
The relevant provisions read as follows:
Article 1 of the Convention
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article 18
“The restrictions permitted under [the] Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
- The
Government disputed these claims.
- The
Court recalls that in the Alexandrou case (cited above, §§
38-39) it has found that it was not necessary to carry out a separate
examination of the complaint under Article 14 of the Convention. The
Court does not see any reason to depart from that approach in the
present case (see also, mutatis mutandis, Eugenia
Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90,
§§ 37-38, 31 July 2003). Similar considerations apply to
the applicant's claim under Article 18 of the Convention. Moreover,
the Court has found the respondent Government to be in breach of
Article 1 of Protocol No. 1 and does not consider it necessary to
examine the complaint under Article 1, which is a framework
provision that cannot be breached on its own (see Ireland v. the
United Kingdom, Series A no. 25, § 238, 18 January
1978, and Eugenia Michaelidou Ltd and Michael Tymvios, cited
above, § 42).
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that, contrary to Article 13 of the Convention,
he did not have at his disposal any effective remedy to redress the
above-mentioned grievances.
This provision reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed this claim, observing that the “effective
remedy” mentioned in Article 13 of the Convention necessarily
referred to a remedy in the domestic law of the “TRNC”.
Turkey could neither interfere with the judicial system of the “TRNC”
nor provide remedies to supplement those existing under domestic law.
In the light of the above, the Government submitted that no issue
under Article 13 could be raised by the present application.
- The
Court notes that the applicant has submitted no pleadings on this
point, including on the issue of applicability. It considers
therefore that it is not necessary to examine this complaint (see
Demades, cited above, § 48).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
- In
his just satisfaction claims of 29 October 1999, the applicant
requested 30,197 Cypriot pounds (CYP –
approximately 51,594 euros (EUR)) for pecuniary damage. He relied on
an expert's report assessing the value of his losses which included
the loss of annual rent collected or expected to be collected from
renting out his plots of land, plus interest from the date on which
such rents were due until the date of payment. The rent claimed was
for the period dating back to January 1987, when the respondent
Government accepted the right of individual petition, until October
1999. The applicant did not claim compensation for any purported
expropriation since he was still the legal owner of the properties.
The evaluation report contained a description of the applicant's
plots of land in the Districts of Nicosia and Larnaca.
- The
starting point of the valuation report was the rental value of the
applicant's 11 plots of land in 1974, calculated on the basis of a
percentage (5%) of the market value of the properties. According to
the expert, the total annual rent which could have been obtained in
1974 was CYP 353 (approximately EUR 603). This sum was subsequently
adjusted upwards according to an annual rental increase (varying from
5% to 7%), in order to arrive at the total annual rent receivable in
1987 (CYP 853) and in 1999 (CYP 3,111). For the plots described in
paragraph 8 (a) and (k) above, the rent receivable was calculated
only from the dates (1997 and 1995 respectively) on which the
applicant acquired ownership of the fields (see paragraph 9 above).
Compound interest for delayed payment was applied at a rate of 8% per
annum.
- The
applicant further requested CYP 160,000 (approximately EUR 273,376)
for the impossibility of developing the plot described in paragraph 8
(a) above, which was land which could be developed, located at
approximately 12 kilometres from Nicosia. The total sum requested in
1999 for pecuniary damage was thus CYP 190,197 (approximately
EUR 324,970).
- On
11 January 2008, following a request from the Court for an update on
the developments of the case, the applicant submitted updated claims
for just satisfaction. He alleged that the time elapsed since 1999
had increased his losses and that the total sum due for pecuniary
damage was at least CYP 1,550,000 (approximately EUR 2,648,330).
- In
his just satisfaction claims of 29 October 1999, the applicant
moreover claimed CYP 140,000 (approximately EUR 239,204) in
respect of non-pecuniary damage. In particular, he requested CYP
5,000 per year for the period 1987-1991, CYP 10,000 per year for the
period 1992-1999 plus the additional sum of CYP 35,000.
(b) The Government
- The
Government filed comments on the applicant's updated claims for just
satisfaction on 30 June 2008 and 15 October 2008. They pointed out
that the present application was part of a cluster of similar cases
raising a number of problematic issues and maintained that the claims
for just satisfaction were not ready for examination. The Government
had in fact encountered serious problems in identifying the
properties and their present owners. The information provided by the
applicants in this regard was not based on reliable evidence.
Moreover, owing to the lapse of time since the lodging of the
applications, new situations might have arisen: the properties could
have been transferred, donated or inherited within the legal system
of southern Cyprus. These facts would not have been known to the
respondent Government and could be certified only by the
Greek-Cypriot authorities, who, since 1974, had reconstructed the
registers and records of all properties in northern Cyprus.
Applicants should be required to provide search certificates issued
by the Department of Lands and Surveys of the Republic of Cyprus. In
cases where the original applicant had passed away or
the property had changed hands, questions might arise as to whether
the new owners had a legal interest in the property and whether they
were entitled to pecuniary and/or non-pecuniary damages.
- The
Government further noted that some applicants had shared properties
and that it was not proved that their co-owners had agreed to the
partition of the possessions. Nor, when claiming damages based on the
assumption that the properties had been rented after 1974, had the
applicants shown that the rights of the said co-owners under domestic
law had been respected.
- As
concerns specifically the present application, the Government noted
that the decision on admissibility only referred to registration
numbers in respect of property at the Ayios Epiphanios village and
that the applicant's title deeds were forwarded to them only at a
later stage of the proceedings. They further pointed out that it was
not possible to identify the property claimed by the applicant where
there was no “plot” or “sheet/plan” reference
in addition to the locality.
- The
Government submitted that as an annual increase of the value of the
properties had been applied, it would be unfair to add compound
interest for delayed payment, and that Turkey had recognised the
jurisdiction of the Court on 21 January 1990, and not in January
1987. In any event, the alleged 1974 market value of the properties
was exorbitant, highly excessive and speculative; it was not based on
any real data with which to make a comparison and made insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international. The
report submitted by the applicant had instead proceeded on the
assumption that the property market would have continued to flourish
with sustained growth during the whole period under consideration.
- The
Government produced a valuation report prepared by the
Turkish-Cypriot authorities, which they considered to be based on a
“realistic assessment of the 1974 market values, having regard
to the relevant land records and comparative sales in the areas where
the properties [were] situated”. This report contained two
proposals, assessing, respectively, the sum due for the loss of use
of the properties and their present value. The second proposal was
made in order to give the applicant the option to sell the property
to the State, thereby relinquishing title to and claims in respect of
it.
- The
report prepared by the Turkish-Cypriot authorities specified that it
would be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the property
described in paragraph 8 above. In case the conditions for
restitution were not fulfilled, the applicant could claim financial
compensation, to be calculated on the basis of the loss of income (by
applying a 5% rent on the 1974 market values) and increase in value
of the property between 1974 and the date of payment. Had the
applicant applied to the Immovable Property Commission, the latter
would have offered CYP 6,837.24 (approximately EUR 11,682) to
compensate the loss of use and CYP 7,282.59 (approximately EUR
12,443) for the value of the property. According to an expert
appointed by the “TRNC” authorities, the 1974 open-market
value of the applicant's properties was the following:
-
plot of land described in paragraph 8 (b) above: CYP 80
(approximately EUR 136);
-
plot of land described in paragraph 8 (c) above: CYP 50
(approximately EUR 85);
-
plot of land described in paragraph 8 (d) above: CYP 50
(approximately EUR 85);
-
plot of land described in paragraph 8 (e) above: CYP 80
(approximately EUR 136);
-
plot of land described in paragraph 8 (f) above: CYP 350
(approximately EUR 598);
-
plot of land described in paragraph 8 (g) above: CYP 200
(approximately EUR 341);
-
plot of land described in paragraph 8 (h) above: CYP 200
(approximately EUR 341);
-
plot of land described in paragraph 8 (j) above: CYP 180
(approximately EUR 307).
No
estimate was given for the plots described in paragraph 8 (a), (i)
and (k) above.
- Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicant exchange of its properties with
Turkish-Cypriot properties located in the south of the island.
45. Finally,
the Government did not comment on the applicant's submissions under
the head of non-pecuniary damage.
2. The third party intervener
- The
Government of Cyprus fully supported the applicant's updated claims
for just satisfaction.
3. The Court's assessment
- The
Court first notes that the Government's submission that doubts might
arise as to the applicant's title of ownership over the properties at
issue (see paragraphs 38 and 40 above) is, in substance, an objection
of incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. Such an objection should have been
raised before the application was declared admissible or, at the
latest, in the context of the parties' observations on the merits. In
any event, the Court cannot but confirm its finding that the
applicant had a “possession” over the properties
described in paragraph 8 above within the meaning of Article 1 of
Protocol No. 1 (see paragraph 21 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicant of the 1974 market value of his properties is
reasonable. The question must accordingly be reserved and the
subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
his just satisfaction claims of 29 October 1999, the applicant, who
presented his own case before the Court (see paragraph 2 above),
sought CYP 5,296 (approximately EUR 9,048) for the costs and expenses
incurred before the Court. This sum included CYP 1,296 (approximately
EUR 2,214) for the costs of the expert report assessing the value of
his properties.
- The
Government did not comment on this point.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant.
FOR THESE REASONS, THE COURT
- Dismisses by six votes to one the Government's
preliminary objections;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Articles 1, 13, 14 and
18 of the Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Karakaş
is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE KARAKAŞ
Unlike
the majority, I consider that the objection of non-exhaustion of
domestic remedies raised by the Government should not have been
rejected. Consequently, I cannot agree with the finding of a
violation of Article 1 of Protocol No. 1 of the Convention, for the
same reasons as those mentioned in my dissenting opinion in the case
of Alexandrou v. Turkey (no. 16162/90, 20 January 2009).
