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FOURTH
SECTION
CASE OF HAPESHIS AND HAPESHI-MICHAELIDOU v. TURKEY
(Application
no. 35214/97)
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 Hapeshi-Michaelidou 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. 35214/97) 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 nationals, Mr Michael P. Hapeshis
and Mrs Maria Hapeshi-Michaelidou (“the applicants”),
on 10 January 1997.
- The
applicants were represented by Mr M. Triantafillides,
Mr K. Chrysostomides and Mr C. Clerides, three lawyers
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 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 8 February 2000 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 brother and sister, were born in 1959 and 1942
respectively. The first applicant (who is a Cypriot and British
citizen) lives in London, while the second applicant (a Cypriot
citizen) resides in Larnaca.
- The
applicants alleged that until August 1974 they were living in a house
owned by their father in Ayios Amvrosios, in the District of Kyrenia
(northern part of Cyprus). This house was built on plot no. 233/9 of
sheet/plan 13/23. The second applicant, who had been recently
married, was living with her husband and daughter in the east wing of
the house, a separate residence, while the first applicant was living
with his mother and father in the west wing. The plot on which the
two semi-detached residences had been built covered an area of 517
square metres (m²); each residence was of 290 m². They both
had a garage and two floors.
- The
applicants left their house on 13 August 1974, as the Turkish troops
were advancing. On 17 August 1974 their 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 house and land in question was to be equally shared
by the two applicants. On 30 July 1991, Mr T. Michaelides was
appointed as executor of his will. On 10 July 1995 the applicants
registered, in equal shares, their titles with the Department of
Lands and Surveys of the Republic of Cyprus. The first applicant got
the west residence, while the second applicant got the east one. The
first applicant tried, via the British consular authorities, to visit
his property, but did not obtain permission.
- The
applicants had been informed that their house had been occupied by
high-ranked Turkish military officers.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. The Government's objections
1. Objection of incompatibility ratione
temporis or ratione
materiae
(a) The Government's objection
- The
Government 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 “Turkish Republic of Northern Cyprus”
(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 house in Ayios Amvrosios. 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 known 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 v.
Turkey ((merits), Reports of Judgments and Decisions 1996-VI,
18 December 1996), the applicants alleged that the facts complained
of were imputable to Turkey for the purposes of the Convention.
- They
observed that their father was the lawful owner of the property in
question in 1974. The respondent Government could have ascertained
this by consulting the “Turkish-Cypriot Lands Office”.
There was the expectation that the applicants would, in due course,
become the property's registered owners. In fact, the house was
constructed as two separate dwellings, one of which had been given by
the applicants' father to the second applicant on her marriage, while
it had always been the stated intention of the deceased that the
second dwelling would become the first applicant's property in due
course. Subsequent acts of the “TRNC” could not deprive
the applicants' 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. This transaction
could not have been recorded by the “Turkish-Cypriot Lands
Office” because the authorities of the “TRNC”
considered that the property in question had already been
expropriated. Therefore, the Government could not rely on the records
of the “Turkish Cypriot Lands Office” to contest the
applicants' title.
- To
assume that the applicants had no proprietary rights until 10 July
1995 would only mean that there had not been any continuing violation
of their rights under Article 1 Protocol No. 1 between 1974 and
that date. In order to establish that there had been such a violation
after 10 July 1995 the applicants were only required to show that
they had not been allowed to enjoy their property since then. The
fact that the applicants knew that they could not enjoy their
property when they became the registered owners of it in 1995 was
irrelevant.
(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 had 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 occurred in the “TRNC” territory constituted a
continuing situation and not an instantaneous act of deprivation of
ownership.
(d) The Court's assessment
- In
its decision on the admissibility of the application, the Court
considered that the Government's objections that the application was
incompatible ratione materiae and ratione temporis were
closely linked to the substance of the applicants' complaints and
that they should be examined together with the merits of the
application.
- The
Government did not contest the applicants' statement that their
father was the owner of the house in Ayios Amvrosios. They argued,
however, that the property 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 house
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 property. 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 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 8 OF THE CONVENTION
- The applicants submitted that in
1974 they had their home in Ayios Amvrosios. As they had been unable
to return there, they were the victims 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
applicants submitted that, contrary to the applicant in the Loizidou
case, they had had their principal residence in Ayios Amvrosios. They
claimed that any interference with their Article 8 rights had not
been justified under the second paragraph of this provision.
- 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.
- The
Court notes that the Government failed to produce any evidence
capable of casting doubt upon the applicants' statement that, at the
time of the Turkish invasion, they were regularly residing in Ayios
Amvrosios and that this house was treated by them and their family as
a home.
- Accordingly,
the Court considers that in the circumstances of the present case,
the house of the applicants qualified as “home” within
the meaning of Article 8 of the Convention at the time when the acts
complained of took place.
- The
Court observes that the present case differs from the Loizidou
case ((merits), cited above) since, unlike Mrs Loizidou, the
applicants actually had a home in Ayios Amvrosios.
- The
Court notes that since 1974 the applicants 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
applicants' right to respect for their 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
- 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 8 of the Convention and
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).
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 applicants
- In
their just satisfaction claims of 7 April 2000, the applicants
requested 91,456 Cypriot pounds (CYP –
approximately 156,261 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 property in Ayios Amvrosios, 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 April 2000. The applicants did not claim compensation
for any purported expropriation since they were still the legal
owners of the property. The evaluation report contained a description
of Ayios Amvrosios, of its development perspectives and of the
applicants' property.
- The
valuation report calculated the annual rent obtainable from the
applicants' property as a percentage (4%) of the market value of the
two semi-detached houses in August 1974. A 5% annual increase was
applied both to the rents and to the market value of the property.
According to the applicants' expert, their houses had a 1974 market
value of CYP 38,000 (approximately EUR 64,926), while the
rent obtainable from them at that time was CYP 1,520 (approximately
EUR 2,597) per annum. 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 loss of the use
of the property 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 was CYP 102,379 plus CYP 104,206 for
interest. The total sum claimed under this head was thus CYP 206,585
(approximately EUR 352,971).
- In
their just satisfaction claims of 7 April 2000, 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
- 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 the
properties described in paragraph 8 above 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 property between 1974 and
the date of payment. Had the applicants applied to the Immovable
Property Commission, the latter would have offered CYP 17,416.75
(approximately EUR 29,758) to compensate the loss of use from July
1995 onwards and CYP 25,929.69 (approximately EUR 44,303) 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 CYP 4,237 (approximately
EUR 7,239). 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.
50. 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 46 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 18-20 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 7 April 2000, relying on bills from
their representatives, the applicants sought CYP 3,750 (approximately
EUR 6,407) for the costs and expenses incurred before the Court.
In their updated claims for just satisfaction of 25 January
2008, they submitted additional bills of costs for the new valuation
report and for legal fees amounting to EUR 517.5 and EUR 2,000
respectively. The total sum sought for cost and expenses was
thus approximately EUR 8,924.
- 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 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 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 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).
