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FOURTH
SECTION
CASE OF MICHAEL v. TURKEY
(Application
no. 18361/91)
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 Michael 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. 18361/91) 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, Mr Michalis Michael (“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 that the Turkish occupation of the northern part of
Cyprus had deprived him of his home and properties.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
a decision of 24 August 1999 the Court declared the application
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
- The
applicant was born in 1957 and lives in Nicosia.
- The
applicant stated that he had been living in a house in Kyrenia and
was the owner of a field with trees in the village of Ayios
Epiktitos. As a result of the 1974 Turkish military intervention he
had been deprived of his property rights, his property being located
in the area which was under the occupation and the overall control of
the Turkish military authorities. The latter had prevented him from
having access to and using his house and property. He was being
continuously prevented from entering the northern part of Cyprus
because of his Greek-Cypriot origin.
- The
applicant produced two certificates from the Department of Lands and
Surveys of the Republic of Cyprus, stating that he was the legal and
registered owner of the following immovable property in the District
of Kyrenia:
- Kyrenia,
Ayios Epiktitos, Mevlitoudi, field with trees, sheet/plan 13/25, plot
no. 120, surface: hectares 2, decares 2, sq. m 663, share: ¼.
- The
applicant acquired ownership of this property on 27 June 1990, when
it was transferred to him by way of inheritance from his grandfather
and a gift from his parents.
- On
9 December 1990 the applicant made one further attempt to return to
his property in northern Cyprus by participating in a convoy of cars
of fellow refugees intending to return home during a peaceful march
towards their villages. The applicant and his fellow refugees, who
had informed the Commander of the United Nations (UN) forces in
Cyprus of their intentions, stopped at the check point in the “buffer
zone”, on the main road linking Nicosia with Ayios Amvrosios
and Kyrenia. There, they asked the UN officer on duty to be allowed
to return to their homes, property and villages. They requested the
same officer to forward their demand to the Turkish military
authorities. The officer replied that the latter had refused their
request.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility ratione
loci and ratione temporis, non-exhaustion of domestic
remedies and lack of victim status. The Court observes that these
objections were identical to those raised in the case of Alexandrou
v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009),
and should be dismissed for the same reasons.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained of a violation of his right to peaceful
enjoyment of his possessions. He submitted that he had been prevented
from returning to and making use of his property in northern Cyprus.
He invoked Article 1 of 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.
A. The arguments of the parties
1. The Government
- The
Government submitted that the applicant had produced no evidence to
show that at the time of the 1974 Turkish intervention he had been
the owner of immovable property either in Kyrenia or in Ayios
Epiktitos. The applicant had confined himself in producing a
certificate obtained from the Greek Cypriot Department of Lands and
Surveys on 21 October 1992, at the applicant's request and on
the basis of information supplied by him. According to this document,
a certain “Michail Michail” was the owner of a “field
with trees” (plot no. 120) in Ayios Epiktitos, which he
had acquired only on 27 June 1990. In the Government's opinion, this
did not prove that the applicant had title to the land at issue at
the material time.
- Moreover,
the applicant had not applied through the proper channels to visit
his alleged properties. He had not attempted to enter the northern
part of Cyprus at an approved crossing point, and had not been
prevented from doing so by Turkish or Turkish-Cypriot forces. He had
been stopped on the southern side of the buffer zone by UNFICYP, in
the vicinity of the Greek-Cypriot cease-fire line. The Turkish forces
had not been in any way involved in the incident.
- Finally,
the alleged interference with the applicant's property rights could
not be seen in isolation from the general political situation on the
island of Cyprus and was in any event justified in the general
interest.
2. The applicant
- The
applicant observed that he had produced prima facie evidence
that in 1990 he had become the owner of a field with trees in the
village of Ayios Epiktitos. Relying 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), he
alleged that the interference with his property rights had been
unlawful, had not served a legitimate aim and had been in any event
not a proportionate act maintaining a fair balance between the rights
of the individual and the public interest.
B. The third-party intervener's arguments
- The
Government of Cyprus observed that their Department of Lands and
Surveys had provided certificates confirming ownership in favour of
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 authorities of the
“Turkish Republic of Northern Cyprus” (the “TRNC”)
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 applicant has submitted certificates
issued by the Departments of Lands and Surveys of the Republic of
Cyprus providing prima facie evidence that he had a title of
ownership (in the share of ¼) over the “field with
trees” located in the village of Ayios Epiktitos (see paragraph
9 above). As the respondent Government failed to produce convincing
evidence in rebuttal, the Court considers that the applicant had a
“possession” over this field 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. he 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 and continues to be a violation of
Article 1 of Protocol No. 1 by virtue of the fact that the applicant
is denied access to and control, use and enjoyment of his property as
well as any compensation for the interference with his property
rights.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant submitted that in
1974 he had had his home in Kyrenia. As he had been unable to return
there, he 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, observing that the applicant was no
longer living in the area where he allegedly had had his “home”.
In any event, the applicant's inability to return to northern Cyprus
had been an inevitable consequence of the political state of affairs
on the island and of the existence of the UN buffer zone. The alleged
interference with his rights under Article 8 had therefore been
necessary in the interests of national security, public safety, for
the prevention of disorder and for the protection of the rights and
freedoms of others.
- The
applicant submitted that, contrary to the applicant in the Loizidou
case, himself, his mother (the applicant in application no. 18360/91)
and his father (the applicant in application no. 18364/91) had had
their principal residence in the town of Kyrenia. He claimed that any
interference with his 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 applicant's statement that, at the
time of the Turkish invasion, he was regularly residing in Kyrenia
and that this house was treated by the applicant and his family as a
home.
- Accordingly,
the Court considers that in the circumstances of the present case,
the house where the applicant was living with his parents 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, op. cit.) since, unlike Mrs Loizidou, the
applicant actually had a home in Kyrenia.
- The
Court notes that since 1974 the applicant has been unable to gain
access to and to use that home. In connection with this the Court
recalls that, in its judgment in the case of Cyprus v. Turkey
(cited above, §§ 172 175), it concluded that the
complete denial of the right of Greek Cypriot displaced persons
to respect for their homes in northern Cyprus since 1974 constituted
a continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General ...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
- The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
- Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention on account of the complete denial of the
applicant's right to respect for his home.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
- In
his just satisfaction claims of 29 October 1999, the applicant
requested 14,804 Cypriot pounds (CYP –
approximately 25,294 euros (EUR)) for pecuniary damage. He relied on
an expert's report assessing the value of his losses which included
the loss of annual rent collected or expected to be collected from
renting out his field in Ayios Epiktitos, 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 1999. The applicant did not claim compensation for any
purported expropriation since he was still the legal owner of the
property. The valuation report contained a description of Ayios
Epiktitos village and of the applicant's field, which was a grove
covered with olive and carob trees. It had mainly an agricultural
use.
- According
to the valuation report, the rent payable for agricultural lands
depended on the nature of the use and on the productivity of the
property. According to the information provided by the applicant, the
trees in his field were in a very good condition and in full
production. As olive and carob trees had an indefinite life span and
there was a steady demand for their products, the rent payable in
1974 could be fixed at CYP 35 (approximately EUR 60) per decare per
annum. As the applicant owned ¼ of a field of approximately 22
decares, the rent payable in 1974 was estimated at CYP 198
(approximately EUR 338). The expert further took into account the
trends in rent increase (an average of 7% per annum for agricultural
properties). 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 applicant 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. He
produced a revised valuation report which, on the basis of the
criteria adopted in the previous report, concluded that the whole sum
due for the loss of use was CYP 21,407 plus CYP 19,706 for
interests (the interest applied from 2001 onwards was 6 percent per
annum). The total sum claimed under this head was thus CYP 41,113
(approximately EUR 70,245).
- In
his just satisfaction claims of 29 October 1999, the applicant
claimed CYP 55,000 (approximately EUR 93,973) in respect of
non pecuniary damage. 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
- The
Government filed comments on the applicant's updated claims for just
satisfaction on 30 June 2008 and 15 October 2008. They pointed out
that the present application was part of a cluster of similar cases
raising a number of problematic issues and maintained that the claims
for just satisfaction were not ready for examination. The Government
had in fact encountered serious problems in identifying the
properties and their present owners. The information provided by the
applicants in this regard was not based on reliable evidence.
Moreover, owing to the lapse of time since the lodging of the
applications, new situations might have arisen: the properties could
have been transferred, donated or inherited within the legal system
of southern Cyprus. These facts would not have been known to the
respondent Government and could be certified only by the
Greek-Cypriot authorities, who, since 1974, had reconstructed the
registers and records of all properties in northern Cyprus.
Applicants should be required to provide search certificates issued
by the Department of Lands and Surveys of the Republic of Cyprus.
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 had instead proceeded on the
assumption that the property market would have continued to flourish
with sustained growth during the whole period under consideration.
- The
Government produced a valuation report prepared by the
Turkish-Cypriot authorities, which they considered to be based on a
“realistic assessment of the 1974 market values, having regard
to the relevant land records and comparative sales in the areas where
the properties [were] situated”. This report contained two
proposals, assessing, respectively, the sum due for the loss of use
of the properties and their present value. The second proposal was
made in order to give the applicant the option to sell the property
to the State, thereby relinquishing title to and claims in respect of
it.
- The
report prepared by the Turkish-Cypriot authorities specified that it
would not be possible to envisage restitution of the property
described in paragraph 9 above, which could only 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
value) and increase in value of the plot of land between 1974 and the
date of payment. Had the applicant applied to the Immovable Property
Commission, the latter would have offered CYP 39,644.51
(approximately EUR 67,736) to compensate the loss of use and CYP
42,226.78 (approximately EUR 72,148) for the value of the property.
According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of the applicant's plot of
land was CYP 6,900 (approximately EUR 11,789). Upon fulfilment of
certain conditions, the Immovable Property Commission could also have
offered the applicant exchange of his property with Turkish-Cypriot
properties located in the south of the island.
- The
Government further noted that there was no specification of property
in the application form or in the decision on admissibility, with the
exception of a statement that the applicant was born and raised in
Ayios Amvrosios village and that in 1973 he had moved his residence
to Kyrenia, where he had been the owner of a “fully furnished
house”. The only evidence submitted by the applicant was a
certificate obtained from the Greek-Cypriot authorities on 21 October
1992 in respect of a plot of land in Ayios Epiktitos (and not in
Ayios Amvrosios). No further detail about the property in question
was contained in the applicant's updated claims for just
satisfaction.
- Finally,
the Government did not comment on the applicant's submissions under
the head of non-pecuniary damage.
2. The third-party intervener
- The
Government of Cyprus fully supported the applicant's updated claims
for just satisfaction.
3. The Court's assessment
- The
Court first notes that the Government's submission that doubts might
arise as to the applicant's title of ownership over the property at
issue (see paragraphs 41 and 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” over the field in Ayios
Epiktitos within the meaning of Article 1 of Protocol No. 1 (see
paragraph 21 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicant of the 1974 market value of his plot of land is
reasonable. The question must accordingly be reserved and the
subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
his just satisfaction claims of 29 October 1999, relying on bills
from his representative, the applicant sought CYP 3,400
(approximately EUR 5,809) for legal fees and CYP 1,080 (approximately
EUR 1,845) for the cost of the expert report assessing the value of
his property. In his updated claims for just satisfaction of
25 January 2008, the applicant 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 EUR 10,171.5.
- The
Government did not comment on this point.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant.
FOR THESE REASONS, THE COURT
- Dismisses by six votes to one the Government's
preliminary objections;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 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.
