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FOURTH
SECTION
CASE OF HAPESHIS AND OTHERS v. TURKEY
(Application
no. 38179/97)
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 Hapeshis and Others 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. 38179/97) 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 two Cypriot and two British nationals, Mr
Michael P. Hapeshis, Mrs Maria Hapeshi-Michaelidou, Mrs
Praxoulla Hapeshi-Campbell and Mrs Prodromoulla Hapeshi-Evagora (“the
applicants”), on 10 January 1997.
- The
applicants were represented by Mr K. Chrysostomides, a lawyer
practising in Nicosia. The Turkish Government (“the
Government”) were represented by their Agent,
Mr Z.M. Necatigil.
- The
applicants alleged that the Turkish occupation of the northern part
of Cyprus had deprived them of their 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 8 June 1999 the Court declared the application
admissible.
- The
applicants 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
applicants, who are siblings, were born in 1959, 1942, 1947 and 1944
respectively. The first applicant (who is a Cypriot and British
citizen) lives in London; the second, third and fourth applicants all
reside in Larnaca. The second applicant is a Cypriot citizen, while
the third and fourth applicants are British citizens.
- On
13 August 1974, as the Turkish troops were advancing, the applicants'
father left the village of Ayios Avrosios in the District of Kyrenia,
where he owned the following immovable properties:
(a) plot
of land with trees in Kapsala (plot no. 12/7/5/1, sheet/plan
13/15, registration no. 14426, area: hectares (h.) 3, decares (d.) 9,
square metres (m²) 818);
(b)
plot of land with trees in Glifhonera (plot no. 12/7/3,
sheet/plan 13/15, registration no. 13911, area: h. 5, d. 6, m²
105);
(c)
plot of land with trees in Glifhonera (plot no. 12/7/4,
sheet/plan 13/15, registration no. 13912, area: h. 5, d. 5, m² 27);
(d)
plot of land with trees in Apati (plot nos. 13/4 and 15/3,
sheet/plan 13/31, registration no. 10106, area: d. 2, m² 342);
(e)
plot of land with trees in Spati (plot no. 250/3, sheet/plan
13/23, registration no. 7182, area: d. 3, m² 345);
(f)
plot of land with trees in Apati (plot no. 11/6, sheet/plan
13/31, registration no. 10097, area: m² 437);
(g)
plot of land with trees in Apati (plot no. 11, sheet/plan 13/31,
registration no. 10087, area: d. 4, m² 14);
(h) plot
of land in Trachonas (plot no. 579, sheet/plan 13/22,
registration no. 5927; area: d. 1, m² 673).
- In
support to their claim that their father was the owner of the
above-mentioned plots of land, the applicants submitted copies of the
title deeds and of the relevant certificates of ownership.
- On
17 August 1974 the applicants' father tried to visit his property but
was arrested by Turkish soldiers. He was released on the same day,
since he was a British citizen.
- On
19 May 1991 the applicants' father died. According to his will, dated
18 May 1988, the plot described under paragraph 8 (a) above was to be
inherited by the first applicant and the other plots were to be
inherited by the four applicants in equal shares. On 30 July 1991, Mr
T. Michaelides was appointed as executor of the will of the
applicants' father. The applicants registered their titles with the
Department of Lands and Surveys of the Republic of Cyprus on 10 July
1995. The first applicant tried, via the British consular
authorities, to visit the properties at issue, but did not obtain
permission.
- In
a letter of 2 September 2003, the applicants informed the Court that
Turkey was planning to construct a highway at the edge of their
properties and that an area of m² 6,000 had been taken for this
purpose. The applicants had not been consulted on the matter and no
compensation had been offered to them.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- In
a letter of 26 July 1999, the Government requested that their
observations in application no. 35214/97 (Hapeshis and
Hapeshi-Michaelidou v. Turkey) be considered the
respondent Government's observations also in the present case. In the
ambit of application no. 35214/97 the Government raised the
following preliminary objections.
1. Objection of incompatibility ratione
loci, ratione temporis
or ratione materiae
(a) The Government's objection
- The
Government objected that Turkey had no jurisdiction or control over
the territory of the Turkish Republic of Northern Cyprus (the
“TRNC”), which was an independent and democratic de
facto State, and not a “subordinate local administration”
of Turkey. The applicants' immovable properties were situated in the
“TRNC” and were under its exclusive control. They had
been expropriated by administrative acts of the “TRNC”
under the laws and constitutional provisions applicable in the
“TRNC”. The Government challenged the principles affirmed
by the Court in the case of Loizidou v. Turkey ((merits),
Reports of Judgments and Decisions 1996-VI, 18 December 1996).
- The
Government further submitted that, according to the records of the
“Turkish-Cypriot Lands Office” in Girne/Kyrenia, the
applicants were not the owners of any property in the northern part
of Cyprus in 1974. Nor were the applicants, according to the same
source, the owners of any property at the date of introduction of the
application. The property referred to in the application was
originally registered in the name of the Government of Cyprus as a
forest, then in the name of the applicants' father and, finally, in
the name of the “TRNC”. Given that in 1974 the applicants
had no right or interest in relation to the property at issue, there
was no question of a continuing violation that could have subsisted
until 28 January 1987 when Turkey recognised the right of
individual petition. Assuming that the applicants had acquired the
property in 1995, there was no question of Turkish involvement in
their inability to have access to the plots of land at issue.
Moreover, as they had acquired the property twenty-one years after
the events of 1974 and eight years after Turkey's declaration
concerning the right of individual petition, the applicants should
have know that access to this property was practically impossible and
that the Turkish-Cypriot authorities had expropriated it. As a
result, they cannot invoke Turkish responsibility. In the light of
the above, the application should be considered incompatible either
ratione materiae or ratione temporis with the
provisions of the Convention.
(b) The applicants' arguments
- Relying
on the case-law developed by the Court in the case of Loizidou
((merits), cited above), the applicants alleged that the facts
complained of were imputable to Turkey for the purposes of the
Convention.
- They
further observed that their father was the lawful owner of the
properties in question in 1974 and that they had an expectation of
becoming, in due course, the properties' registered owners.
Subsequent acts of the “TRNC” could not deprive their
father of his title. The applicants became the legal owners by virtue
of their father's will and this was recorded by the official
authorities of the Republic of Cyprus.
(c) The third-party intervener's arguments
- The
Government of Cyprus recalled that in the case of Loizidou
((merits), cited above) the Court had found that Turkey had
responsibility for securing human rights in the occupied area of
Cyprus. They challenged the respondent Government's allegations that
the “TRNC” was a State or an entity with effective
authority, whose creation interrupted the chain of any Turkish
responsibility for the events which took place in northern Cyprus.
They moreover reiterated that the violations of the right of property
which had occurred in the “TRNC” territory constituted a
continuing situation and not an instantaneous act of deprivation of
ownership.
- The
third-party intervener further observed that its Department of Lands
and Surveys had provided with certificates of affirmation the persons
who did not have title deeds in their possession but whose title was
entered in District Land Offices registers in the Turkish-occupied
area. These certificates were prima facie evidence of their
right of property. The “TRNC” authorities were in
possession of all the records of the Department of Lands and Surveys
relating to the title to properties. It was therefore the duty of the
respondent Government to produce them.
(d) The Court's assessment
- The
Court observes that the Government did not contest the applicants'
statement that their father was the owner of the plots of land
described in paragraph 8 above. They argued, however, that the
properties at issue had subsequently been expropriated by the “TRNC”
authorities. The Court recalls that in the Loizidou case
((merits), cited above, §§ 44 and 46) it held that it could
not attribute legal validity for the purposes of the Convention to
the provisions of Article 159 of the “TRNC” fundamental
law, concerning the acquisition to the “TRNC” of the
immovable properties considered to be abandoned on 13 February 1975.
It furthermore considered that Greek-Cypriots who, like Mrs Loizidou,
had left their properties in the northern part of the island in 1974
could not be deemed to have lost title to their property. It follows
that, until his death on 19 May 1991, the applicants' father was
still the legal owner the plots of land at issue. He was therefore
capable of transmitting ownership to his children, according to his
will, dated 18 May 1988.
- The
Court further notes that on 10 July 1995 the applicants registered
their titles of ownership with the Department of Lands and Surveys of
the Republic of Cyprus (see paragraph 10 above). Despite this, they
were unable to make use of and have access to their properties. At
the relevant time, Turkey had already recognised the right of
individual petition. It is also to be recalled that the Court had
duly examined and rejected the objection of inadmissibility by reason
of lack of effective control over northern Cyprus raised by
the Turkish Government in the case of Cyprus v. Turkey ([GC],
no. 25781/94, §§ 69-81, ECHR 2001-IV). It sees no
reason to depart from its reasoning and conclusions in the instant
case.
- It
follows that the Government's preliminary objections of
incompatibility ratione loci, ratione temporis or
ratione materiae should be rejected.
2. Objection of inadmissibility on the grounds of
non-exhaustion of domestic remedies and lack of victim status
- The
Government also 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
applicants complained that since August 1974, Turkey had prevented
them from exercising their right to the peaceful enjoyment of their
possessions.
They
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
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 since the date on
which they acquired ownership (10 July 1995), the applicants
were denied access to and control, use and enjoyment of their
properties as well as any compensation for the interference with
their property rights.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against them in the
enjoyment of their rights under Article 1 of Protocol No. 1. They
alleged that this discrimination had been based on their national
origin.
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
Government disputed this claim.
- 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).
IV. 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 applicants
- In
their just satisfaction claims of 29 September 1999, the applicants
requested 4,489,931 Cypriot pounds (CYP –
approximately 7,671,496 euros (EUR)) for pecuniary damage. They
relied on an expert's report assessing the value of their losses
which included the loss of annual rent collected or expected to be
collected from renting out their plots of land, plus interest from
the date on which such rents were due until the day of payment. The
rents claimed were for the period dating back to January 1987, when
the respondent Government accepted the right of individual petition,
until September 1999. The applicants did not claim compensation for
any purported expropriation since they were still the legal owner of
the properties. The evaluation report contained a description of
Ayios Amvrosios, of its development perspectives and of the
applicants' properties.
- The
expert first observed that two of the applicants' properties were
building sites situated in highly touristic locations. The annual
rent obtainable from these plots of lands was calculated as a
percentage (6%) of their market value in August 1974. A 12 percent
annual increase was applied both to the rents and to the market value
of the properties. According to the expert, these two building sites
had a 1974 market value of CYP 450,000 (approximately EUR 768,870),
while the annual rent obtainable from them in 1987 was CYP 109,200
(approximately EUR 186,579). The other applicants' properties
were agricultural lands. In 1974 their total annual rental value was
CYP 30.41 (approximately EUR 52), to which a 7% annual increase
was applied. Moreover, compound interest for delayed payment was
applied at a rate of 8% per annum.
- On
25 January 2008, following a request from the Court for an update on
the developments of the case, the applicants submitted updated claims
for just satisfaction, which were meant to cover the period of loss
of the use of the properties from 1 January 1987 to 31 December 2007.
They 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 for the agricultural lands was CYP 3,140.56
plus CYP 2,890.91 for interest. The total sum claimed under this head
was thus CYP 6,301 (approximately EUR 10,765). As concerned the
building sites, the total rent from 1 January 1987 to
31 December 2007 was CYP 5,596,692, while the interest amounted
to CYP 4,428,347. The total sum claimed for these two properties was
thus CYP 10,025,039 (approximately EUR 17,128,781), while the whole
pecuniary damage suffered by the applicants was approximately EUR
17,139,546.
- In
their just satisfaction claims of 29 September 1999, the applicants
further claimed non-pecuniary damages. They left up to the Court to
determine their amount, noting, however, that they considered that
the sum of CYP 100,000 (approximately EUR 170,860) for each
of them would not be sufficient.
(b) The Government
38. The
Government filed comments on the applicants' 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 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 applicants 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 applicants 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 (d), (e), (f) and (g) above. The other
immovable property referred to in the application was possessed by
refugees; it could not 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 property between 1974 and the
date of payment. Had the applicants applied to the Immovable Property
Commission, the latter would have offered CYP 401,239.52
(approximately EUR 685,557) to compensate the loss of use from July
1995 onwards and CYP 597,356.91 (approximately EUR 1,020,644) for the
value of the properties. According to an expert appointed by the
“TRNC” authorities, the 1974 open-market value of the
applicants' properties was the following:
-
plots of land described under paragraph 8 (a), (b) and (c) above
(building sites): CYP 95,593.22 (approximately EUR 163,300);
-
plot of land described under paragraph 8 (d) above: CYP 76.27
(approximately EUR 130);
-
plot of land described under paragraph 8 (e) above: CYP 105.93
(approximately EUR 180);
-
plot of land described under paragraph 8 (f) above: CYP 12,71
(approximately EUR 21);
-
plot of land described under paragraph 8 (g) above:
CYP 17.12 (approximately EUR 29);
-
plot of land described under paragraph 8 (h) above: CYP 1,694.92
(approximately EUR 2,895).
- Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicants exchange of their properties
with Turkish-Cypriot properties located in the south of the island.
43. Finally,
the Government did not comment on the applicants' submissions under
the head of non-pecuniary damage.
2. The third party intervener
- The
Government of Cyprus fully supported the applicants' 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 applicants' title of ownership over the properties at
issue (see paragraph 38 above) is, in substance, an objection of
incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. Such an objection has already been
examined and rejected by the Court for the reasons stated in
paragraphs 20-22 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 applicants of the 1974 market value of their 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 applicants
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
their just satisfaction claims of 29 September 1999, relying on bills
from their representatives, the applicants sought CYP 11,265.62
(approximately EUR 19,248) for the costs and expenses incurred
before the Court. This sum included CYP 5,400 (approximately EUR
9,226) for the costs of the expert report assessing the value of
their properties. In their updated claims for just satisfaction of
25 January 2008, the applicants submitted additional bills of
costs for the new valuation report and for legal fees amounting to
EUR 1,955 and EUR 2,000 respectively. The total sum
sought for cost and expenses was thus approximately EUR 23,203.
- 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
applicants.
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 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 applicants 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).
