BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF KYRIAKOU v. TURKEY
(Application
no. 18407/91)
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 Kyriakou 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. 18407/91) 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 Yiannis Kyriakou (“the
applicant”), on 31 May 1991.
- The
applicant was represented by Mr E. Evripidou, 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
applicant died on 3 November 1994. No letters of administration
having been granted for his estate, his lawful heirs are his wife,
Mrs Andriana Yianni Kyriakou and his two sons, Andreas Ioannou
and Kyriakos Ioannou. In September 1999 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).
- By
a decision of 8 June 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 1908.
- The
applicant grew up in Trypimeni, a village in the District of
Famagusta. He alleged that he was the owner of the following
immovable properties in the village:
(a) registration
no. 5147, plot no. 20, sheet/plan 13/40, house with two rooms and one
kitchen, one veranda, oven, trees and yard; the applicant alleged
that two extra rooms and one kitchen had been added later; area of
the plot of land: 530 sq. m; area of the house: 230 sq. m;
(b) registration
no. 2597, plot no. 442, sheet/plan 13/40, field with olive trees;
area: 13,713 sq. m.
- In
support of his claim of ownership, the applicant submitted copies of
the original title deeds. It appears from these documents that the
applicant owned five twelfths of the property described above under
paragraph 9 (a) and half of the property described above under
paragraph 9 (b). However, in his observations of September
1999, the applicant’s lawyer alleged that his client had had
full ownership of the whole of the two plots. He submitted that from
1921 onwards only the applicant, his wife and his two children had
been living in the house built on plot no. 20. This house had been
the marital home from the time of his wedding and the applicant had
had the absolute and unrestricted use and occupation of it. Moreover,
from August 1928 the applicant had been cultivating and taking care
of the whole of plot no. 442. He had been a farmer who earned his
income from the production of the olive trees. In support of these
statements, the applicant’s lawyer produced a certificate
issued by the Trypimeni village committee on 25 September 1999.
The reason why the applicant had not been registered as the owner of
the whole share of the two plots was that the applicant’s
mother, Mrs Maria Yianni, had been the owner of two twelfths of plot
no. 20. She had given one twelfth of the plot to the applicant
and one twelfth to his brother, Mr Elias Kyriakou, in the form of an
unregistered gift. The applicant’s brother had also been the
owner of the remaining five twelfths of plot no. 20 and of the
remaining half of plot no. 442. In 1956 Mr Elias Kyriakou, who
had emigrated to Australia and had no intention of coming back to
Cyprus, had given all his shares to the applicant. However, no
official transfer of ownership had been entered in the land register.
In support of his version of the facts, the applicant’s lawyer
produced an affidavit from the applicant’s son, Mr Andreas
Ioannou.
- In
July 1974, as the Turkish troops were advancing, the applicant and
his family had to leave Famagusta and flee to the area still
controlled by the Cypriot Government. The applicant had lived until
his death in a small house located in a housing scheme for displaced
persons.
- Since
1974 the applicant had been unable to return to his home and property
in the northern part of Cyprus. He participated in various peaceful
demonstrations and marches, but had been prevented from walking home
by the Turkish troops. On 9 December 1990 the applicant took part
once again in a car convoy organised by persons from three villages
in Kyrenia and from Trypimeni wishing to return to their homes in the
north peacefully. The participants in the convoy had informed the
commander of the United Nations (UN) forces in Cyprus of their
intention to return home. They drove to the “buffer zone”
checkpoint on the main road linking Nicosia and Famagusta. There they
stopped and asked the UN officer on duty to be allowed to return to
their homes, properties and villages. They requested him to transmit
their demand to the Turkish military authorities. The UN officer
announced to the applicant and the other participants in the convoy
that the Turkish military authorities had refused their request to
drive through the checkpoint and enter the northern part of Cyprus.
THE LAW
I. PRELIMINARY ISSUE
- The
Court notes at the outset that the applicant died on 3 November 1994,
after the lodging of his application, while the case was pending
before the Court. His heirs (his wife and his two sons) informed the
Court that they wished to pursue the application lodged by him (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 wife and sons can pursue the application
initially brought by Mr Yiannis Kyriacou (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
- 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.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that since July 1974, Turkey had prevented him
from exercising his right to the peaceful enjoyment of his
possessions.
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 properties claimed by the applicant
were situated outside the jurisdiction of Turkey and that the latter
had no knowledge about them. In any event, the applicant had not
produced any title deed supporting his claim to ownership. His
properties had not been occupied or used by the Turkish army.
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,
but by UNFICYP officials.
- 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 had in any event been justified in the
general interest.
2. The applicant
- The
applicant relied on the principles laid down by the Court in the
Loizidou v. Turkey judgment ((merits), 18 December
1996, Reports of Judgments and Decisions 1996-VI), and
recalled that on 9 December 1990 he had been prevented from returning
to his properties and home.
B. The third-party intervener
- The
Government of Cyprus 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 “Turkish Republic
of Northern Cyprus” (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 10 above) provide prima facie evidence that he 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 (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 applicant was
denied access to and control, use and enjoyment of his properties as
well as any compensation for the interference with his property
rights.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant submitted that in
1974 he had had his home in Trypimeni. As he had been unable to
return there until his death, 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’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, he had been the owner of a house in Trypimeni and that until
1974 he and his family had been using these premises as their home.
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
Trypimeni 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 of the applicant 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 Trypimeni.
- The
Court notes that from 1974 until his 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 his home.
V. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION AND OF
ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained of a violation of the general obligation to
respect human rights enshrined in Article 1 of the Convention.
He also complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against him in the
enjoyment of his rights under Article 8 of the Convention and Article
1 of Protocol No. 1. He alleged that this discrimination had been
based on his national origin and religious beliefs.
The relevant provisions read as follows:
Article 1 of the Convention
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government disputed these claims.
- 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). Moreover, the Court has found the
respondent Government to be in breach of Article 1 of Protocol No. 1
and of Article 8 of the Convention and does not consider it necessary
to examine the complaint under Article 1, which is a framework
provision that cannot be breached on its own (see Ireland v. the
United Kingdom, § 238, 18 January 1978, Series A no.
25, and Eugenia Michaelidou Ltd and Michael Tymvios, cited
above, § 42).
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that he had not had at his disposal any effective
remedy by which to obtain redress for the above-mentioned grievances.
He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed this claim, observing that the “effective
remedy” mentioned in Article 13 of the Convention necessarily
referred to a remedy in the domestic law of the “TRNC”.
Turkey could neither interfere with the judicial system of the “TRNC”
nor provide remedies to supplement those existing under domestic law.
In the light of the above, the Government submitted that no issue
under Article 13 could be raised by the present application.
- The
Court notes that the applicant submitted no pleadings on this point,
including on the issue of applicability. It considers therefore that
it is not necessary to examine this complaint (see Demades
(merits), cited above, § 48).
VII. 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 September 1999, the applicant’s
heirs requested 53,600 Cypriot pounds (CYP –
approximately 91,580 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 owner of the properties. The evaluation report contained a
description of Trypimeni village. The applicant’s heirs
requested that any sum awarded by the Court under Article 41 of the
Convention be distributed equally amongst them.
- The
starting point of the valuation report was the rental value of the
applicant’s properties in 1974, calculated on the basis of the
rent obtainable for comparable properties in the area and on a
percentage of their market value. According to the expert, the annual
rent which could have been obtained in 1974 from the applicant’s
house (whose open-market value was CYP 5,260 – approximately
EUR 8,987) and field were CYP 264 and CYP 685 respectively, thus
the total sum of CYP 949 (approximately EUR 1,621). This sum was
subsequently adjusted upwards according to an annual rental increase
of 5%, in order to arrive at the annual rent receivable in 1987 (CYP
1,789) and in 1999 (CYP 3,212). Compound interest for delayed payment
was applied at a rate of 8% per annum.
- On
28 January 2008, following a request form the Court for an update on
developments in the case, the applicant’s heirs submitted that
the market and rental value of their properties had considerably
increased and that it was necessary to upgrade their claims for just
satisfaction. However, despite their lawyer’s efforts, it had
not been possible to produce a revised valuation report.
- In
their just satisfaction claims of September 1999, the applicant’s
heirs further claimed the total sum of CYP 80,000 (approximately
EUR 136,688) 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), cited
above), 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 Articles 8 and 14 of the
Convention.
(b) The Government
48. 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. As concerns specifically the
present application, the Government noted that almost all the
property located in the Maraş area of Famagusta belonged to a
religious trust known as Vakf. Once the latter had acquired
ownership, its real estate could not be alienated, transferred or
inherited. The title deeds produced by the applicant showed that he
had usurped the Vakf properties. The Government submitted that
the issues raised by the respect of the principles applicable to this
kind of property should be left to the domestic courts and that the
European Court of Human Rights should not deliver judgments which
might prejudice the rights of the Cyprus Evcaf Administration (which
had competence over Vakf properties) and those of the
beneficiaries.
- 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 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 property to the State, thereby relinquishing title to and claims
in respect of it.
- The
report prepared by the Turkish-Cypriot authorities specified that it
would be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the property
described in paragraph 9 (a) above. The other immovable property
referred to in the application was possessed by refugees; it could
not form the object of restitution but could give entitlement to
financial compensation, to be calculated on the basis of the loss of
income (by applying a 5% rent on the 1974 market values) and increase
in value of the property between 1974 and the date of payment. Had
the applicant’s heirs applied to the Immovable Property
Commission, the latter would have offered CYP 5,889.2 (approximately
EUR 10,062) to compensate the loss of use and CYP 6,272.7
(approximately EUR 10,717) for the value of the properties. According
to an expert appointed by the “TRNC” authorities, the
1974 open-market value of the properties described in paragraph 9
above was CYP 1,025 (approximately EUR 1,751). Upon fulfilment of
certain conditions, the Immovable Property Commission could also have
offered the applicant’s heirs exchange of their properties with
Turkish-Cypriot properties located in the south of the island.
54. 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 paragraphs 48-49 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 house and
the field in Trypimeni village within the meaning of Article 1 of
Protocol No. 1 (see paragraph 22 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the 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 September 1999, relying on bills
from their representative, the applicant’s heirs sought CYP
2,620 (approximately EUR 4,476) for the costs and expenses incurred
before the Court. This sum included CYP 800 (approximately EUR 1,366)
for the cost of the expert report assessing the value of the
properties.
- 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 his 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 it is not necessary to
examine whether there has been a violation of Articles 1, 13 and 14
of the Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the 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.
