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FOURTH
SECTION
CASE OF SOPHIA ANDREOU v. TURKEY
(Application
no. 18360/91)
JUDGMENT
STRASBOURG
27
January 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 Sophia Andreou 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 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18360/91) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mrs Sophia Andreou (“the
applicant”), on 7 June 1991.
- The
applicant was 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
applicant alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived her of her home and properties.
- The
applicant died on 15 December 1993. Her heirs are her husband, Mr
Andreas Michael Ioannou, her son, Mr Michael Michael, and her
daughter, Mrs Christina Michael. On 3 August 1993 the applicant's
heirs informed the Court that they wished to pursue the application
on behalf of the deceased.
- 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).
- On
11 May 1999, the applicant's heirs were granted legal aid.
- By
a decision of 15 June 1999 the Court declared the application partly
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
- The
applicant was born in 1930.
- The
applicant claimed that she was the owner of a house with a yard, as
well as a garden and four plots of land with trees in the village of
Ayios Amvrosios in northern Cyprus. She allegedly also owned half of
a plot of land with trees and one sixth of another plot with trees
and an olive grove in the same area. The applicant grew up and lived
in Ayios Amvosios until 1973, when she claimed to have moved to
Kyrenia. She lived there with her family, allegedly in a house owned
by her husband. In July 1974, as the Turkish troops were advancing,
the applicant and her family had to flee to the area still controlled
by the Cypriot Government.
- Before
the Court, the applicant produced a certificate confirming ownership
issued by the Department of Lands and Surveys of the Republic of
Cyprus, a certificate for the same purpose signed by the chairman of
the local committee of Ayios Amvrosios and a certificate signed by
the rural guard of Ayios Amvrosios. It transpires from these
documents that the applicant's properties could be described as
follows:
(a) Kyrenia,
Ayios Amvrosios, within the village, house with yard (ground level),
sheet/plan 13/14X, plot nos. 189/1/2/1, 189/3, area: 350 sq. m,
share: whole;
(b) Kyrenia,
Ayios Amvrosios, Tzieheneu Teresi, field with trees, sheet/plan
13/14, plot nos. 189/1/2/1, 189/3, area: 350 sq. m, share: whole;
(c) Kyrenia,
Ayios Amvrosios, Ayios Demetrianos, field with trees, sheet/plan
13/13, plot no. 193, area: 3.54 decares, share: whole;
(d) Kyrenia,
Ayios Amvrosios, Moussas, field with trees, sheet/plan 13/21,
plot no. 207, area: 1.229 decares, share: whole;
(e) Kyrenia,
Ayios Amvrosios, Tsioppi, garden/cultivated field, sheet/plan 13/23,
plot no. 115, area: 335 sq. m, share: whole;
(f) Kyrenia,
Ayios Amvrosios, Bambatzera, field with trees, sheet/plan 13/27,
plot no. 226, area: 1 hectare, 1.851 decares, share: whole;
(g) Kyrenia,
Ayios Amvrosios, Vouno tis Mangous, field with trees,
sheet/plan 13/31, plot no. 32/1, area: 1 hectare, 9.449 decares,
share: whole;
(h) Kyrenia,
Ayios Amvrosios, Vouno tis Mangous, field with trees,
sheet/plan 13/31, plot no. 32/3, area: 1 hectare, 3.186 decares,
share: ½;
(i) Kyrenia,
Ayios Amvrosios, Tzieheneu Teresi, field with olive trees, sheet/plan
13/19, plot no. 171, share: 1/6.
- Between
1974 and her death the applicant was unable to return to her home and
property in the northern part of Cyprus. She was also unable to make
use of her property there in any other manner.
- After
1974 the applicant took part in a number of peaceful demonstrations
and marches towards Ayios Amvrosios. She claimed that on all
occasions she was prevented from “walking home” by
Turkish troops. On 9 December 1990 the applicant took part once again
in a car convoy organised by persons from Kyrenia wishing to return
to their homes in the north peacefully. The participants in the
convoy had informed the Prime Minister of Turkey, the representative
of the Secretary-General of the United Nations (UN) in Cyprus and the
commander of the UN forces on the island of their intention to return
home. They drove to the Mia Milia buffer zone checkpoint on the
main road linking Nicosia and Kyrenia. There they stopped and asked
the UN forces officer on duty to be allowed to return to their homes,
property and villages. They requested him to transmit their demand to
the Turkish military authorities. Four hours later, the UN officer
announced to the applicant and the other participants in the convoy
that their request to drive through the checkpoint and enter the
northern part of Cyprus had been refused. The applicant claimed that
they had been told that their request had been refused by the Turkish
military authorities. The respondent Government contended that the UN
officer had consulted the Turkish-Cypriot authorities.
THE LAW
I. PRELIMINARY ISSUE
- The
Court notes at the outset that the applicant died on 15 December
1993, after the lodging of her application, while the case was
pending before the Court. Her heirs (her husband and her two
children) informed the Court that they wished to pursue the
application lodged by her (see paragraph 4 above). Although the heirs
of a deceased applicant cannot claim a general right for the
examination of the application brought by the latter to be continued
by the Court (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 applicant's husband and children can pursue the application
initially brought by Mrs Sophia Andreou (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
- In
their further observations of 23 October 2003, the Government raised
preliminary objections concerning non-exhaustion of domestic remedies
and lack of victim status in the light of the Law on compensation for
immovable properties located within the boundaries of the “Turkish
Republic of Northern Cyprus” (the “TRNC”). The
Court observes that these objections are identical to those raised in
the case of Alexandrou v. Turkey (no. 16162/90, §§
13-14 and 21, 20 January 2009), and should be dismissed for the same
reasons, notably the fact that they had been raised after this part
of the application was declared admissible (see also Demades v.
Turkey (merits), no. 16219/90, § 20, 31 July
2003).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained of a violation of her right to peaceful
enjoyment of her possessions under Article 1 of Protocol No. 1.
This provision reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government observed that the applicant had not produced any evidence
that in July 1974 she had been the owner of immovable property in
Kyrenia or Ayios Amvrosios. The documents obtained by the applicant
from the Lands Office of the Republic of Cyprus could not be relied
on because they had been issued on the basis of information supplied
by the applicant herself and did not show title to the properties
concerned at the material time.
- They
further submitted that the aim of the demonstration of 9 December
1990 had been political propaganda. There had been no genuine
intention to return to properties in the northern part of Cyprus. The
applicant had not applied through the proper channels and Mia Milia
was not an approved crossing point. Moreover, she had been well aware
of the agreement between the two communities about the voluntary
relocation of populations, which was implemented under UN auspices.
- In
any event, given the political situation on the island, the
complaints put forward by the applicant could only be settled within
the framework of an overall settlement of the island's problems.
Failing that, the extensive control of the use of property in the
northern part of the island by the Turkish-Cypriot authorities was
justified in the general interest in accordance with Article 1 of
Protocol No. 1. The respondent Government pointed out in this
connection that it would be paradoxical and unfair not to take the
local laws into consideration and yet to hold Turkey responsible for
the acts of the “TRNC” authorities. They also submitted
that the measures in question were necessary to facilitate the
rehabilitation of Turkish-Cypriot refugees and look after abandoned
Greek-Cypriot property and put it to better use. There was a public
interest in not undermining the inter-communal talks concerning
freedom of movement and settlement and the right to property. The
status of the UN buffer-zone also rendered it necessary to regulate
the right of access to possessions until a settlement of the
political problem was achieved.
2. The applicant
- The
applicant submitted that she had attempted to cross the buffer-zone
and that she had indeed been the owner of the properties in question
in 1974. The respondent Government could have verified the title
deeds issued by the Lands Office of the Republic of Cyprus against
the old records in Kerynia, which were in their possession.
- The
applicant had not left the northern part of Cyprus of her own will,
but had been forced to flee. Between 1974 and her death, there had
been continuous interference with her enjoyment of her right to
property. Moreover, there had been a significant change in the
treatment of Greek-Cypriot property in the northern part of the
island with the enactment by the “TRNC” of Law No. 52 of
1995, which gave effect to Article 159 of the “TRNC”
Constitution, a provision allowing expropriation.
- The
interference with the applicant's property rights could not be
justified under Article 1 of Protocol No. 1. The policies of the
“TRNC” could not furnish a legitimate aim since the
establishment of the “TRNC” was an illegitimate act
condemned by the UN Security Council. For the same reason, the
interference could not be found to be in accordance with the law and
the general principles of international law. Nor was it
proportionate. The applicant relied essentially on the principles
laid down by the Court in the case of Loizidou v. Turkey
((merits), 18 December 1996, Reports of Judgments and
Decisions 1996-VI).
B. The third-party intervener's arguments
- The
Government of Cyprus observed that their Department of Lands and
Surveys had provided certificates confirming ownership to those
persons who did not have title deeds in their possession but whose
title was entered in the 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.
- The
Government of Cyprus further noted that the present case was similar
to that of Loizidou ((merits), cited above), where the Court
had found that the loss of control of property by displaced persons
arose as a consequence of the occupation of the northern part of
Cyprus by Turkish troops and the establishment of the “TRNC”,
and that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
C. The Court's assessment
- The
Court first notes that the documents submitted by the applicant (see
paragraph 11 above) provide prima facie evidence that she had
a title of ownership over the properties at issue. As the respondent
Government failed to produce convincing evidence in rebuttal, the
Court considers that the applicant had a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court recalls that in the aforementioned Loizidou case
((merits), cited above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact that the
applicant has been refused access to the land since 1974, she has
effectively lost all control over, as well as all possibilities to
use and enjoy, her property. The continuous denial of access must
therefore be regarded as an interference with her rights under
Article 1 of Protocol No. 1. Such an interference cannot, in the
exceptional circumstances of the present case to which the applicant
and the Cypriot Government have referred, be regarded as either a
deprivation of property or a control of use within the meaning of the
first and second paragraphs of Article 1 of Protocol No. 1. However,
it clearly falls within the meaning of the first sentence of that
provision as an interference with the peaceful enjoyment of
possessions. In this respect the Court observes that hindrance can
amount to a violation of the Convention just like a legal impediment.
64. Apart from a passing reference to the doctrine of
necessity as a justification for the acts of the 'TRNC' and to the
fact that property rights were the subject of intercommunal talks,
the Turkish Government have not sought to make submissions justifying
the above interference with the applicant's property rights which is
imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
- In
the case of Cyprus v. Turkey ([GC], no. 25781/94,
ECHR 2001–IV) the Court confirmed the above conclusions
(§§ 187 and 189):
“187. The Court is persuaded that both its
reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation of Article
1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners
of property in northern Cyprus are being denied access to and
control, use and enjoyment of their property as well as any
compensation for the interference with their property rights.”
- The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus
v. Turkey cases (op. cit.; see also Demades
(merits), cited above, § 46).
- Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1 by virtue of the fact that the applicant was denied access to
and control, use and enjoyment of her property as well as any
compensation for the interference with her property rights.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant submitted that in
1974 she had had her home in Kyrenia. As she had been unable to
return there until her death, she was the victim of a violation of
Article 8 of the Convention.
This provision reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government disputed this claim, alleging that there was no evidence
that in 1974 the applicant had had her residence in Kyrenia.
- 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 applicant's statement that, at the
time of the Turkish invasion, she was regularly residing in Kyrenia
and that this house was treated by the applicant and her family as a
home.
- Accordingly,
the Court considers that in the circumstances of the present case,
the house where the applicant was living with her husband 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
applicant actually had a home in Kyrenia.
- The
Court notes that from 1974 until her death the applicant was unable
to gain access to and to use that home. In this connection the Court
recalls that, in its judgment in the case of Cyprus v. Turkey
(cited above, §§ 172-175), it concluded that the
complete denial of the right of Greek Cypriot displaced persons to
respect for their homes in northern Cyprus since 1974 constituted a
continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General ...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
- The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
- Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention on account of the complete denial of the
applicant's right to respect for her home.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
- In
their just satisfaction claims of 29 September 1999, the applicant's
heirs requested 196,962 Cypriot pounds (CYP –
approximately 336,529 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 the properties, plus interest from the
date on which such rents were due until the day of payment. The rent
claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until September 1999. The applicant's heirs 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 Ayios Amvrosios village.
- The
starting point of the valuation report was the rental value of each
property in 1974, subsequently adjusted upwards or downwards
according to the annual increase or decrease, in order to arrive at
the rent receivable in 1987. The expert took into account the nature
of the area under study and the trends in rent increase (an average
of 7% or 12% per annum) in the unoccupied areas on the basis of the
Consumer Price Index for rents and housing of the Department of
Statistics and Research of the Government of Cyprus. Compound
interest for delayed payment was applied at a rate of 8% per annum.
Thus, the total annual rent which could have been obtained in 1974
was CYP 360 (approximately EUR 615) for the property referred to in
paragraph 11 (a) and (b) above and CYP 99.2 (approximately EUR 169)
for the properties referred to in paragraph 11 (c), (d), (e), (g) and
(h) above; the properties referred to in paragraph 11 (f) and (i)
above had a 1974 open-market value of CYP 17,565 (approximately
EUR 30,011).
- On
25 January 2008, following a request from the Court for an update on
developments in the case, the applicant's heirs submitted updated
claims for just satisfaction, which were meant to cover the period of
loss of 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 sums due
for the loss of use were CYP 47,074 for the property
referred to in paragraph 11 (a) and (b) above, CYP 20,557 for the
property referred to in paragraph 11 (c), (d), (e), (g) and (h) above
and CYP 597,290 for the property referred to in paragraph 11 (f) and
(i) above. The total sum claimed by the applicant's heirs thus
amounted to CYP 664,921 (approximately EUR 1,136,084).
- In
their just satisfaction claims of 29 September 1999, the applicant's
heirs further claimed CYP 380,000 (approximately EUR 649,268) in
respect of non-pecuniary damage. They stated that this sum had been
calculated on the basis of the sum awarded by the Court in the
Loizidou case ((just satisfaction), 28 July 1998, Reports
1998-IV), taking into account, however, that the period of time
for which the damage was claimed in the instant case was longer and
that there had also been a violation of Article 8 of the Convention.
(b) The Government
46. The
Government filed comments on the applicant's heirs' 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.
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 had not been proved that their co-owners had agreed to
the partition of the possessions. Nor, when claiming damages based on
the assumption that the properties had been rented after 1974, had
the applicants shown that the rights of the said co-owners under
domestic law had been respected.
- The
Government 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 to make a comparison and made insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international. The
report submitted by the applicant's heirs had instead proceeded on
the assumption that the property market would have continued to
flourish with sustained growth during the whole period under
consideration.
- The
Government produced a valuation report prepared by the
Turkish-Cypriot authorities, which they considered to be based on a
“realistic assessment of the 1974 market values, having regard
to the relevant land records and comparative sales in the areas where
the properties [were] situated”. This report contained two
proposals, assessing, respectively, the sum due for the loss of use
of the properties and their present value. The second proposal was
made in order to give the applicant's heirs the option to sell the
properties to the State, thereby relinquishing title to and claims in
respect of them.
- 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 properties
described in paragraph 11 (d), (f), (g), (h) and (i) above. The
other immovable properties referred to in the application were
possessed by refugees; they 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 properties
between 1974 and the date of payment. Had the applicant's heirs
applied to the Immovable Property Commission, the latter would have
offered CYP 45,884.21 (approximately EUR 78,397) to compensate
the loss of use and CYP 48,872.90 (approximately EUR 83,504) for the
value of the properties. According to an expert appointed by the
“TRNC” authorities, the 1974 open-market value of all the
properties described in paragraph 11 above was CYP 7,986
(approximately EUR 13,644). Upon fulfilment of certain conditions,
the Immovable Property Commission could also have offered the
applicant's heirs an exchange of their properties with
Turkish-Cypriot properties located in the south of the island.
- Finally,
the Government did not comment on the applicant's heirs' submissions
under the head of non-pecuniary damage.
2. The third-party intervener
- The
Government of Cyprus fully supported the applicant's heirs' updated
claims for just satisfaction.
3. The Court's assessment
- The
Court first notes that the Government's submission that doubts might
arise as to the applicant's title of ownership over the properties at
issue (see 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 should have been
raised before the application was declared admissible or, at the
latest, in the context of the parties' observations on the merits. In
any event, the Court cannot but confirm its finding that the
applicant had a “possession” within the meaning of
Article 1 of Protocol No. 1 (see paragraph 27 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 invasion. This failure renders it
difficult for the Court to assess whether the estimate furnished by
the applicant's heirs 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
applicant's heirs (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 representative, the applicant's heirs sought CYP 10,160.62
(approximately EUR 17,360) for the costs and expenses incurred before
the Court. This sum included CYP 2,160 (approximately EUR 3,690) for
the cost of the expert report assessing the value of the properties.
On 7 June 2000 the applicant's heirs' representative declared that
his clients had received legal aid in the amount of 5,000 French
francs (approximately EUR 762) and that this sum should have been
deducted from his previous bill. In their updated claims for just
satisfaction of 25 January 2008, the applicant's heirs 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
Government did not comment on this point.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the
applicant's heirs.
FOR THESE REASONS, THE COURT
- Holds unanimously that the applicant's heirs
have standing to continue the present proceedings in her 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;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant's heirs 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 27 January 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 dissenting opinion of Judge
Karakaş is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE KARAKAŞ
(Translation)
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 of Article 8 of the Convention.
The
rule of exhaustion of domestic remedies is intended to give
Contracting States the opportunity to prevent or provide redress for
violations alleged against them before such allegations are referred
to the Court. That reflects the subsidiary nature of the Convention
system.
Faced
with the scale of the problem of deprivations of title to property
alleged by Greek Cypriots (approximately 1,400 applications of this
type lodged against Turkey), the Court, in the operative part of its
Xenides Arestis v. Turkey judgment of 22 December 2005,
required the respondent State to provide a remedy guaranteeing the
effective protection of the rights set forth in Article 8 of the
Convention and Article 1 of Protocol No. 1 in the context of all the
similar cases pending before it. The State has a legal obligation not
just to pay those concerned the sums awarded by way of just
satisfaction under Article 41 of the Convention, but also to select
the general or, if appropriate, individual measures to be adopted in
its domestic legal order to put an end to the violation found by the
Court and to redress so far as possible the effects. The Government
submitted that by enacting the Law on Compensation for Immovable
Properties (Law no. 67/2005) and setting up a Commission to deal with
compensation claims it had discharged that obligation (see also
Xenides Arestis v. Turkey (just satisfaction),
no. 46347/99, § 37, 7 December 2006). It is that
domestic remedy which, in their submission, the applicant failed to
exercise in the present case.
The
exhaustion of domestic remedies is normally assessed at the
time when an application is lodged with the Court. However, there are
exceptions to the rule which may be justified by the
particular circumstances of each case (see Baumann v.
France, no. 33592/96, § 47, ECHR 2001-V (extracts)).
Examples
of such exceptions are to be found in the cases against Italy which
raised similar questions and in which the Court found that certain
specific facts justified departing from the general principle
(see Brusco v. Italy, (dec.) no. 69789/01, ECHR
2001-IX).
In
other examples the Court also took the view, in the light of the
specific facts of the cases concerned, and having regard to the
subsidiary nature of the Convention mechanism, that new domestic
remedies had not been exhausted (see the following
decisions: Nogolica v. Croatia, no. 77784/01, ECHR
2002-VIII; Slaviček v. Croatia, no.
20862/02, ECHR 2002-VII; Andrášik and Others v.
Slovakia, nos. 57984/00, 60226/00, 60242/00, 60679/00, 60680/00
and 68563/01, ECHR 2002-IX; and Içyer v. Turkey,
no. 18888/02, ECHR 2006-I).
In
situations where there is no effective remedy affording the
opportunity to complain of alleged violations, individuals are
systematically compelled to submit to the European Court of Human
Rights applications which could have been investigated first of all
within the domestic legal order. In that way, the functioning of the
Convention system risks losing its effectiveness in the long term
(the most pertinent example is the Broniowski v. Poland case
([GC], no. 31443/96, ECHR 2004-V).
In my
opinion the above examples provide an opportunity to review the
conditions for admissibility in the event of a major change in the
circumstances of the case. For the similar post-Loizidou
cases, the Court can always reconsider its admissibility decision and
examine the preliminary objection of failure to exhaust domestic
remedies.
Since
the Court may reject “at any stage of the proceedings”
(Article 35 § 4 of the Convention) an application which it
considers inadmissible, new facts brought to its attention may lead
it, even when examining the case on the merits, to reconsider the
decision in which the application was declared admissible and
ultimately declare it inadmissible pursuant to Article 35 § 4 of
the Convention, taking due account of the context (see, for example,
Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003,
and Azinas v. Cyprus ([GC], no. 56679/00, §§ 37-43,
ECHR 2004-III).
The
existence of a “new fact” which has come to light
after the admissibility decision may prompt the Court to reconsider
that decision.
I
consider that the Law on Compensation for Immovable Properties (Law
no. 67/2005) and the Commission set up to deal with compensation
claims, which are based on the guiding principles laid down by the
Court in the Xenides-Arestis case, are capable of providing an
opportunity for the State authorities to provide redress for breaches
of the Convention's provisions, including breaches alleged in
applications already lodged with the Court before the Act's entry
into force (see Içyer, cited above § 72). That
consideration also applies to applications already declared
admissible by the Court (see Azinas, cited above).
In
order to conclude whether there has or has not been a breach of the
Convention, complainants must first exercise the new domestic remedy
and then, if necessary, lodge an application with the European Court
of Human Rights, the international court. Following that logic, I
cannot in this case find any violation of the Convention's
provisions.
