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FOURTH
SECTION
CASE OF IORDANIS IORDANOU v. TURKEY
(Application
no. 43685/98)
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 Iordanis Iordanou 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. 43685/98) 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 Iordanis Iordanou (“the
applicant”), on 15 September 1998.
- The
applicant was represented by Mr A. Demetriades, a lawyer practising
in Nicosia. The Turkish Government (“the Government”)
were represented by their Agent, Mr Z.M. Necatigil.
- The
applicant alleged that the Turkish occupation of the northern part of
Cyprus had deprived him of his home and 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 25 June 2002 the Court declared the application
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 1923 and lives in Nicosia.
- The
applicant stated that he was born in Karavas, a village on the coast
in the Kyrenia district of northern Cyprus. On the death of his
father, he inherited the house, located at 15, Lambousa Street, in
which he had lived throughout his childhood. It was situated on plots
nos. 268 and 269, sheet/plan XI/16W1 and 8W2, and was registered in
the name of the applicant by virtue of registration no. 5725 of 23
March 1956; it consisted of three ground floor rooms, two basement
rooms, one kitchen, two wells, one turbine water pump and one water
storage tank. The applicant continued to make use of this house,
where his sister lived, until July 1974.
- However,
when he married in 1963, the applicant moved to a house nearby which
he had purchased. It was situated on plots nos. 20 and 21/3,
sheet/plan XI/16W2.E1, and was registered in the name of the
applicant by virtue of registration no. 5678 of 23 January 1970. This
second house, located at 10, Kanaris Street, consisted of three
ground floor rooms, one room upstairs, two wells, one electric water
pump and one water storage pump.
- The
applicant also owned three plots of land in Karavas, some of which
were lemon groves, with olive and carob trees growing on the others,
and a share in a natural water spring. These properties were
registered as follows:
(a) plot
no. 273, sheet/plan XI/16W1, field with lemon groves of a total
extent of 6,355 m², registered in the name of the applicant by
virtue of registration no. 151 of 23 March 1956;
(b)
plot no. 25, sheet/plan XII/18W1, field with carob and olive trees of
a total extent of 11,372 m², registered in the name of the
applicant by virtue of registration no. 4091 of 16 April 1957;
(c)
plots nos. 76 and 79, sheet/plan XII/18W1, field with carob and olive
trees of a total extent of 35,452 m², registered in the name of
the applicant by virtue of registration no. 4269 of 23 January
1970;
(d) plot
no. 140, sheet/plan XI/24W2, source of running water, registered for
the 1/224 share in the name of the applicant.
- In
support of his claim to ownership the applicant produced the original
Land Certificates concerning each of his alleged properties, with the
exception of the house described under paragraph 9 above. He alleged
that the relevant Land Certificate had been submitted to the Kyrenia
Land Survey Office for amendment in June 1974 and had been lost due
to the Turkish invasion. He therefore produced an extract from the
registries of the Republic of Cyprus, dated 29 June 1993, and
indicating that the property at issue was registered in his name.
- Upon
the 1974 Turkish intervention, the applicant left with his wife and
two children for Limassol, southern Cyprus. He claimed that he had
been deprived of his property rights, all his property being located
in the area which was under the occupation and control of the Turkish
military authorities. The latter had prevented him from having access
to and from using and possessing his houses and fields.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility for
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.
- The
applicant relied, essentially, on the principles laid down by the
Court in the cases of Loizidou v. Turkey ((merits),
Reports of Judgments and Decisions 1996-VI, 18 December
1996) and Cyprus v. Turkey ([GC], no. 25781/94, ECHR
2001–IV).
- The
Government of Cyprus observed that the respondent Government did not
contest the applicant's claims to ownership. It further noted
that the present case was similar to that of Loizidou v. Turkey
((merits), cited above), where the Court 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 “Turkish Republic of Northern Cyprus”
(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.
- The
Court first notes that the documents submitted by the applicant (see
paragraph 11 above) provide prima facie evidence that he had 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 (cited above) 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 ARTICLE 8 OF THE CONVENTION
- The applicant submitted that in
1974 he had had his home in Karavas. As he had been unable to return
there, he had been the victim of a violation of Article 8 of the
Convention.
This provision reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government disputed this claim.
- The
Government of Cyprus submitted that where the applicant's properties
constituted the person's home, there was a violation of Article 8
of the Convention.
- In
its decision on the admissibility of the application, the Court found
that the applicant's house described in paragraph 9 above constituted
a “home” for the purposes of Article 8 § 1
of the Convention, and that impossibility for the applicant to return
to this house constituted an interference with his Article 8
rights.
- The
Court observes that the present case differs from the Loizidou
case ((merits), cited above) since, unlike Mrs Loizidou, the
applicant actually had a home in northern Cyprus.
- The
Court notes that since 1974 the applicant had been unable to gain
access to and to use that home. In this connection the Court recalls
that, in its judgment in the case of Cyprus v. Turkey (cited
above, §§ 172-175), it concluded that the complete
denial of the right of Greek Cypriot displaced persons to
respect for their homes in northern Cyprus since 1974 constituted a
continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General ...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
- The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
- Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention on account of the complete denial of the
applicant's right to respect for his home.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1
OF PROTOCOL NO. 1
- In
his further observations of 30 August 2002, the applicant 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 8 of the Convention and Article 1 of Protocol No. 1. He
alleged that this discrimination had been based on his national
origin and religious beliefs.
Article 14 of the Convention reads as follows:
“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.”
- The
Court first notes that this complaint was not included in its
decision on the admissibility of the application. In any event, and
even assuming that it had been raised by implication in the
applicant's previous pleadings, it 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).
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 30 August 2002, the applicant
requested 870,000 Cypriot pounds (CYP –
approximately 1,486,482 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 properties, plus interest from the
date on which such rents were due until the day 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 1 January 2003. 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
Karavas village and of the applicant's properties.
- The
starting point of the valuation report was the rental value of the
applicant's properties in 1974, calculated as a percentage (varying
from 4 to 6%) of their 1974 open market value. The houses the
applicant owned (see paragraphs 8 and 9 above) were of about 120 and
100 m² respectively. According to the expert, in 1974 their
market value, together with the land annexed to them, could be
estimated at CYP 20,500 (approximately EUR 35,026) and CYP
29,000 (approximately EUR 49,549). The plots of land described under
paragraph 10 (a), (b) and (c) above had a 1974 market value of CYP
50,000 (approximately EUR 85,430), 51,000 (approximately EUR 87,138)
and 53,000 (approximately EUR 90,555) respectively. The market
value of the applicant's share in the natural water spring (see
paragraph 10 (d) above) was estimated at CYP 2,700 (approximately
EUR 4,613).
- The
rents were subsequently adjusted upwards according to an annual
increase of 5% and compound interest for delayed payment was applied
at a rate of 8% per annum.
- On
24 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, which were meant to cover the loss of the use
of the property from 1 January 1987 to 31 December 2007. He produced
a revised valuation report, which, on the basis of the criteria
adopted in the previous report, concluded that the whole sum due for
the loss of use was CYP 694,827 plus CYP 879,339 for interest.
The total sum claimed under this head was thus CYP 1,574,166
(approximately EUR 2,689,620).
- In
his just satisfaction claims of 30 August 2002, the applicant further
claimed CYP 228,000 (approximately EUR 389,560) in respect of
non-pecuniary damage. In particular, he claimed CYP 38,000
(approximately EUR 64,926) for the anguish and frustration he
suffered on account of the continuing violation of his property
rights. He stated that this sum had been calculated on the basis of
the sum awarded by the Court in the Loizidou case ((just
satisfaction), Reports 1998-IV, 28 July 1998), taking
into account, however, that the period of time for which the damage
was claimed in the instant case was longer. The applicant also
claimed CYP 114,000 (approximately EUR 194,780) for the
distress and suffering he had been subjected to due to the denial of
his right to respect for his home, and CYP 76,000 (approximately
EUR 129,853) for the violation of his rights under Article 14 of
the Convention.
- Finally,
in his updated claims for just satisfaction of 24 January 2008, the
applicant requested the additional sum of EUR 50,000 for
non-pecuniary damages.
(b) The Government
- In
reply to the applicant's just satisfaction claims of 30 August 2002,
the Government submitted that Turkey had no access to lands records
in the “TRNC” and could not therefore have sufficient
knowledge about the applicant's alleged immovable properties' value.
- The
properties left by the applicant had been considered abandoned and
had been expropriated under the laws of the “TRNC”. It
was impossible for Turkey to adopt any domestic provision regarding
the expropriations made by another independent State. It should also
be taken into account that during the last decades the landscape in
northern Cyprus had considerably changed and that these changes had
affected the applicant's properties. The issue of reciprocal
compensation for Greek-Cypriot property left in the north of the
island and Turkish-Cypriot property left in the south was very
complex and should be settled through negotiations between the two
sides rather than by adjudication by the European Court of Human
Rights, acting as a first-instance tribunal and relying on the
reports produced by the applicant side only.
- Challenging
the conclusions reached by the Court in the Loizidou case
((just satisfaction), cited above), the Government considered
that in cases such as the present one, no award should be made by the
Court under Article 41 of the Convention. They underlined that the
applicant's inability to have access to his properties depended on
the political situation in Cyprus and, in particular, on the
existence of the UN recognised cease-fire lines. If Greek-Cypriots
were allowed to go to the north and claim their properties, chaos
would explode on the island; furthermore, any award made by the Court
would undermine the negotiations between the two parties.
- 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.
- 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 the
immovable properties referred to in the application were possessed by
refugees; they could not, therefore, form the object of restitution,
but could give entitlement to 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 properties
between 1974 and the date of payment. Had the applicant applied to
the Immovable Property Commission, the latter would have offered CYP
175,666.13 (approximately EUR 300,143) to compensate the loss of use
and CYP 187,113.57 (approximately EUR 319,702) for the
value of the properties. According to an expert appointed by the
“TRNC” authorities, the 1974 open-market value of the
applicant's properties was the following:
-
house described in paragraph 8 above: CYP 1,500 (approximately
EUR 2,562);
-
house described in paragraph 9 above: CYP 5,500 (approximately
EUR 9,397);
-
field described in paragraph 10 (a) above: CYP 7,125 (approximately
EUR 12,173);
-
field described in paragraph 10 (b) above: CYP 8,500 (approximately
EUR 14,523);
-
field described in paragraph 10 (c) above: CYP 7,950 (approximately
EUR 13,583).
No
estimate was given for the source of running water described in
paragraph 10 (d) above.
- Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicant exchange of his properties with
Turkish-Cypriot properties located in the south of the island.
- 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 40 and 43 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 in
Karavas within the meaning of Article 1 of Protocol No. 1 (see
paragraph 18 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 30 August 2002, relying on bills from
his representative, the applicant sought CYP 4,621.6 (approximately
EUR 7,896) for the costs and expenses incurred before the Court. This
sum included CYP 2,000 (approximately EUR 3,417) for the costs of the
expert report assessing the value of his properties. On 25 November
2002, the applicant submitted additional bills of costs from his
lawyer, amounting to CYP 734.5 (approximately EUR 1,254). On
15 January 2004, he claimed additional expenses amounting to CYP
2,645 (approximately EUR 4,519). Finally, in his updated claims for
just satisfaction of 24 January 2008, the applicant submitted
additional bills of costs for the new valuation report and for legal
fees amounting to CYP 2,000 (approximately EUR 3,417) plus
V.A.T. and EUR 2,955.5 (including V.A.T.) respectively. The
total sum claimed under this head was thus approximately EUR 20,041.
- 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 by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 14 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 violations
of Article 1 of Protocol No. 1 and Article 8 of the Convention, for
the same reasons as those mentioned in my dissenting opinion in the
case of Gavriel v. Turkey (no. 41355/98, 20
January 2009).
