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FOURTH
SECTION
CASE OF
HADJITHOMAS AND OTHERS v. TURKEY
(Application
no. 39970/98)
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
Hadjithomas 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. 39970/98) 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 nine Cypriot nationals, Mr Thomas
George Hadjithomas, Mrs Ioulia Yioupa Hadjithoma, Mrs
Paraskevi Hadjithoma-Hapeshi, Mr Nicos Thomas Hadjithomas, Mrs
Xanthi Antoniou-Hadjithoma, Mr Thomas Hadjithomas, Mr
Christoforos Hadjithomas, Mr Andreas Hadjithomas and Savvas
Hadjithoma (“the applicants”), on 2 February 1998.
- The
applicants, who had been granted legal aid, 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 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 11 January 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)).
- On
an unspecified date, the first applicant, Mr Thomas
George Hadjithomas, died. In a fax of 23 February 2003 the other
applicants confirmed their wish to continue the application on his
behalf in their capacity as his heirs.
THE FACTS
- The
applicants were born in 1930, 1936, 1958, 1961, 1959, 1983, 1985,
1987 and 1990 respectively. Their place of residence is not known. In
a fax of 22 March 2002 the applicants' representative indicated that
“the Hadjithomas family had [had] to ... emigrate abroad”.
- The
first and second applicants (Mr Thomas George Hadjithomas and
Mrs Ioulia Yioupa Hadjithoma) were a married couple. The third
and fourth applicants (Mrs Paraskevi Hadjithoma-Hapeshi and Mr Nicos
Thomas Hadjithomas) are their children. The fifth applicant (Mrs
Xanthi Antoniou-Hadjithoma) is the widow of the elder son of the
family, X, whom she married in 1983. The remaining applicants are the
children of X and the fifth applicant.
- The
first and second applicants alleged that they had lived with their
children in Ayios Amvrosios, a village in the District of Kyrenia
(northern Cyprus), where the first applicant owned several
properties, including the family house. On 13 August 1974, as the
Turkish troops were advancing, the applicants left Ayios Amvrosios
and fled to the unoccupied part of Cyprus.
- On
12 January 1996 the first applicant transferred the ownership of most
of his properties, including the family house, to his three children:
the third and fourth applicants and X. In November 1996 X died. His
estate was inherited by the fifth applicant and their children (the
sixth, seventh, eighth and ninth applicants). Detailed information
about the properties at issue is contained in the file. In
particular, in 1974 the first applicant was the owner of 33 plots of
land, including woodlands; the family house (registered under
no. 10920, plot no. 40-41-476/2); a garden; a non-descript
“site”; a “ruined room”; a “ruined mill
with one room”; and an orchard with 12 mulberry trees. These
properties were located in the villages of Ayios Amvrosios, Klepini
and Chartzia.
- The
applicants produced an affidavit from Mr Georgios Michael, the
Kyrenia Deputy District Officer of the Department of Lands and
Surveys of the Republic of Cyprus, stating that:
(a)
for 18 of the properties (including the house) there existed original
title deeds;
(b)
for 6 other properties there existed the title deeds and
“certificates of ownership of Turkish-occupied immovable
properties” issued by the Republic of Cyprus; and
(c)
for 15 other properties the original title deeds were lost in 1974
and only certificates of ownership were available.
All
the above-mentioned documents have been produced by the applicants.
- The
applicants claimed that they had been informed that their house in
Ayios Amvrosios had been destroyed by the Turkish army. This fact was
denied by the respondent Government.
THE LAW
I. PRELIMINARY ISSUE
- The
Court notes at the outset that the first applicant died on an
unspecified date after his application was lodged while the case was
still pending before the Court. His heirs (the other applicants)
informed the Court that they wished to pursue the application in his
name also (see paragraph 7 above). Although the heirs of a deceased
applicant cannot claim a general right to the continued examination
of the deceased's application (see Scherer v. Switzerland,
25 March 1994, Series A no. 287), the Court has accepted on a number
of occasions that close relatives of a deceased applicant are
entitled to take his or her place (see Deweer v. Belgium,
27 February 1980, § 37, Series A no. 35, and Raimondo v.
Italy, 22 February 1994, § 2, Series A no. 281-A).
- For
the purposes of the instant case, the Court is prepared to accept
that the remaining applicants (the first applicant's wife, children,
daughter-in-law and grandchildren) can pursue the application
initially brought by Mr Thomas George Hadjithomas (see,
mutatis mutandis, Kirilova and Others v. Bulgaria, nos.
42908/98, 44038/98, 44816/98 and 7319/02, § 85, 9 June 2005, and
Nerva and Others v. the United Kingdom, no. 42295/98, § 33,
ECHR 2002 VIII).
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
1. Objection of inadmissibility ratione
temporis or ratione
materiae
(a) The Government's objection
- The
Government submitted that the first applicant had lost his title to
the properties in question after 1974 under Article 159 of the
Constitution of the “Turkish Republic of Northern Cyprus”
(the “TRNC”). The remaining applicants did not claim to
own any property in the northern part of Cyprus in 1974. The
properties in question had purportedly been transferred to or
inherited by them long after 1974. At no time after 1974 had the
applicants been prevented by the Turkish authorities from returning
to or using their properties. As a result, the application was
incompatible either ratione materiae or ratione temporis
with the provisions of the Convention.
(b) The applicants' arguments
- The
applicants observed that the Government did not deny that the first
applicant had been the lawful owner of the properties in question in
1974. Subsequent acts of the “TRNC” could not deprive him
of his title, as held by the Court in the Loizidou v. Turkey
judgment ((merits), 18 December 1996, Reports of
Judgments and Decisions 1996-VI). As she was the first
applicant's wife, the second applicant had a proprietary interest in
the properties. The remaining applicants had lawfully acquired their
title directly or indirectly from the first applicant.
(c) The third party intervener's arguments
- The
Government of Cyprus recalled that in the case of Loizidou
v. Turkey ((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 in northern Cyprus. They also
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.
(d) The Court's assessment
- In
its decision on the admissibility of the application, the Court
considered that the Government's objection 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
Court observes that the Government did not contest the applicants'
statement that in 1974 the first applicant was the owner of
properties in Ayios Amvrosios. They argued, however, that the
properties had subsequently been expropriated by the “TRNC”
authorities. The Court notes that in the Loizidou judgment
((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 by the “TRNC” of the
immovable properties considered to have been 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 the first applicant had property rights
since 1974. He was therefore capable of transmitting these rights to
his children (X and the third and fourth applicants), which he did on
12 January 1996 (see paragraph 11 above). The fifth applicant and her
children (the sixth, seventh, eighth and ninth applicants) inherited
part of these properties from X on his death in November 1996 (see
paragraph 11 above). Moreover, all the other applicants inherited the
properties that the first applicant had not transferred to his
children.
- In
view of the above, the Court considers that since 1996 and/or since
the first applicant's death, the other applicants had a right of
property in the real estate which forms the object of the present
application. At the relevant time, Turkey had already recognised the
right of individual petition. It is also to be recalled that the
Court 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 objection of incompatibility ratione
materiae or ratione temporis should be dismissed.
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 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.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The applicants complained that since 1974, Turkey had
prevented them from exercising their right to the peaceful enjoyment
of their possessions.
They invoked Article 1 of Protocol No. 1, which reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government argued that any interference with the applicants' property
rights had been justified. The properties claimed by the applicants
had been expropriated in accordance with the laws of the “TRNC”.
Owing to the relocation of the populations, it had been necessary to
facilitate the rehabilitation of Turkish-Cypriot refugees and to
renovate and put to better use abandoned Greek-Cypriot property. The
Greek-Cypriot side had taken similar measures in respect of abandoned
Turkish-Cypriot properties in the southern part of the island. There
was a public interest in not undermining the inter-communal talks
concerning freedom of movement and right of property. The status of
the UN buffer zone had also rendered it necessary to regulate the
right of access to possessions until a settlement of the political
problem could be achieved. In the light of all the above, it would
have been unrealistic to grant individual applicants a right of
access to property in isolation from the political situation.
2. The applicants
- The
applicants argued that the policies of the “TRNC” could
not furnish a legitimate aim since the establishment of the “TRNC”
was an illegitimate act that had been condemned by the UN Security
Council. For the same reason, the interference could not be found to
have been in accordance with the law and the general principles of
international law. Nor had it been proportionate. The need to rehouse
displaced Turkish-Cypriots could not justify the complete negation of
their property rights.
3. The third-party intervener
- The
Government of Cyprus observed that the “TRNC” authorities
were in possession of all the records of the Department of Lands and
Surveys relating to title to properties in northern Cyprus. It was
therefore their duty to produce them.
- They
further noted that the present case was similar to that of Loizidou
(cited above), where the Court had found that the loss of control
of property by displaced persons had arisen as a consequence of the
occupation of the northern part of Cyprus by Turkish troops and the
establishment of the “TRNC” and that the denial of access
to property in occupied northern Cyprus constituted a continuing
violation of Article 1 of Protocol No. 1.
B. The Court's assessment
- The
Court notes, firstly, that the documents submitted by the applicants
(see paragraph 12 above) provide prima facie evidence that the
first applicant had title to the properties at issue. As the
respondent Government have failed to produce convincing evidence to
rebut this, the Court considers that these properties were
“possessions” within the meaning of Article 1 of Protocol
No. 1. It reiterates its conclusion that the other applicants
received or inherited the properties described in paragraph 11 above
from the first applicant (see paragraphs 20-21 above).
- The
Court observes 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 applicants
were denied access to and the control, use and enjoyment of their
properties as well as any compensation for the interference with
their property rights.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicants submitted that in
1974 their home had been in Ayios Amvrosios. As they had been unable
to return there, they had been 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 applicants' properties
constituted their home, there was a violation of Article 8 of
the Convention.
- The
Court first observes that the sixth, seventh, eighth and ninth
applicants were born in 1983, 1985, 1987 and 1990 respectively (see
paragraph 8 above). They could not, therefore, have resided in Ayios
Amvrosios before 1974. It follows that there has been no interference
with their right to respect for their home. The same applies to the
fifth applicant, who married the elder son of the Hadjithomas family
in 1983, after the Turkish invasion. In this connection, the Court
notes that the sole fact of being the heir of someone who had a
“home” in a particular location cannot, in itself,
entitle the person concerned to a right under Article 8 of the
Convention.
- As
to the remaining applicants, the Court notes that the Government
failed to produce any evidence capable of casting doubt upon their
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 (see paragraph 10 above).
- Accordingly,
the Court considers that in the circumstances of the present case,
the house of the first, second, third and fourth 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
first, second, third and fourth applicants actually had a home in
Ayios Amvrosios. In this connection, it points out 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 first,
second, third and fourth applicants' right to respect for their home
and that there has been no violation of this provision with respect
to the fifth, sixth, seventh, eighth and ninth applicants.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ
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.
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 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).
VI. 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 21 April 2000, the applicants
requested 820,719 Cypriot pounds (CYP –
approximately 1,402,280 euros (EUR)) in respect of 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 properties, plus interest from the
date on which such rents were due until the date of payment. The rent
claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until September 1999. The applicants did not claim compensation for
any purported expropriation since they were still the legal owners of
the properties. The valuation report contained a description of the
villages of Ayios Amvrosios, Klepini and Chartzia, of their
development perspectives and of the applicants' properties.
- The
expert classified the properties into two broad categories: those
with prospects and potential for immediate development and those
whose immediate or foreseeable prospects were limited to agricultural
use. For the first category of properties, the ground rent was
calculated as a percentage (varying from 4% to 6%) of their market
value; for the second category the rent obtainable in 1974 was
calculated on the basis of the rent payable for similar agricultural
lands (between CYP 2 and 5 per decare per annum for standard plots
and between CYP 25 and 35 per decare per annum for groves). According
to the expert, the 1974 market value of the applicants' house was CYP
19,000 (approximately EUR 32,463) and the annual rent obtainable
from it was CYP 760 (approximately EUR 1,298). Other properties had a
market value ranging from CYP 19,991 to CYP 940. Their total 1974
rental value was estimated at CYP 5,028.55 (approximately EUR 8,591).
The following annual increases were applied: 12% for ground rents, 7%
for agricultural properties and 5% for groves and houses. 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
developments in the case, the applicants submitted updated claims for
just satisfaction, which were meant to cover the period of loss of
use of 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 1,135,126 plus CYP 921,023 for
interest. The total sum claimed under this head was thus CYP
2,056,149 (approximately EUR 3,513,136).
- In
their just satisfaction claims of 21 April 2000, the applicants
further claimed compensation in respect of non-pecuniary damage. They
left it to the Court's discretion to determine the amount, noting,
however, that they considered the sum of CYP 100,000 (approximately
EUR 170,860) for each of them hardly sufficient.
(b) The Government
52. 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. They said they
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. Moreover, 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 proven 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 further 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 a comparison could be drawn 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 most of the
properties described in paragraph 11 above, including the
applicants' house. 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 191,757.61 (approximately EUR 327,637) to compensate for the
loss of use from January 1996 onwards and CYP 310,872.77
(approximately EUR 531,157) for the value of the properties.
According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of the applicants' house
described in paragraph 11 above was CYP 4,661.02 (approximately EUR
7,963). Upon fulfilment of certain conditions, the Immovable Property
Commission could also have offered the applicants an exchange of
their properties with Turkish-Cypriot properties located in the south
of the island.
57. Finally,
the Government did not comment on the applicants' submissions under
the head of non-pecuniary damage.
(c) The third party intervener
- The
Government of Cyprus fully supported the applicants' updated claims
for just satisfaction.
2. 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 52 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
properties described in paragraph 11 above constituted the
applicants' “possessions” within the meaning of Article 1
of Protocol No. 1 (see paragraph 30 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 21 April 2000, relying on bills
from their representative, the applicants sought CYP 4,250
(approximately EUR 7,261) and 1,750 pounds sterling
(approximately EUR 2,200) for the costs and expenses incurred before
the Court. They further claimed CYP 3,000 (approximately EUR
5,125) for the expenses pertaining to the valuation report. They
stated that they had received legal aid in the amount of 4,100 French
Francs (approximately EUR 625). 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 690 and EUR 2,000 respectively. The
total sum sought for cost and expenses was thus approximately
EUR 17,276.
- 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
- Holds unanimously that the second, third,
fourth, fifth, sixth, seventh, eighth and ninth applicants have
standing to continue the present proceedings also in the first
applicant's stead;
- 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 with respect to the first,
second, third and fourth applicants;
- Holds unanimously that there has been no
violation of Article 8 of the Convention with respect to the other
applicants;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 14 of the
Convention read in conjunction with Article 8 of the Convention and
Article 1 of Protocol No. 1;
- 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).
