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FOURTH
SECTION
CASE OF SOLOMONIDES v. TURKEY
(Application
no. 16161/90)
JUDGMENT
STRASBOURG
20
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 Solomonides 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
Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16161/90) 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 Antonakis Solomonides
(“the applicant”), on 26 January 1990.
- The
applicant was represented by Mr C. Clerides, 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 prevented him from having access to his
properties.
- The
applicant died on 15 February 1998. On 11 June 1998 the District
Court of Nicosia appointed his wife, Mrs Paulina Solomonides, and a
certain Mrs Rodothea Karaviotou as administrators of his estate.
In his observations of September 1999, the applicant's lawyer
declared that the application should continue on behalf of the estate
in the name of the administrators. As Mrs Paulina Solomonides
died on an unspecified date, Mrs Karaviotou became the sole
administrator of the applicant's estate. She signed an authority,
authorising the applicant's lawyer to continue the proceedings before
the Court.
- 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
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 respondent Government replied to those comments (Rule 44 §
5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lived in Nicosia. He was the director
of the private trading companies "A. Solomonidis Ltd", and
"Solomonidis & Kozolidis Ltd".
- The
applicant stated that he was the owner of 99 plots of land in the
Districts of Kyrenia, Famagusta and Nicosia, in northern Cyprus. In
support of his claim of ownership, he produced copies of the relevant
affirmations of ownership issued by the Republic of Cyprus.
- The
applicant claimed that from 1974 onwards he had been deprived of his
property rights, his plots of land 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 use of his property.
- In
a letter of 17 June 2003 the applicant's lawyer observed that the
private trading companies "A. Solomonidis Ltd", and
"Solomonidis & Kozolidis Ltd" were not the owners of
the properties claimed in the application, the original and only
owner being the applicant, Mr Antonakis Solomonides.
THE LAW
I. PRELIMINARY ISSUE
- The
Court notes at the outset that the applicant died on
15 February 1998, after the lodging of his application,
while the case was pending before the Court. The administrator of his
estate, Mrs Rodothea Karaviotou, informed the Court that she wished
to pursue the application lodged by him (see paragraph 4 above).
Although the heirs of a deceased applicant cannot claim a general
right in respect of 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 administrator of the applicant's estate can pursue the
application initially brought by Mr Antonakis Solomonides (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
A. The Government's objections
1. Objection of inadmissibility ratione
loci
- After
having recalled in detail the facts which led to the creation of the
“Turkish Republic of Northern Cyprus” (the “TRNC”),
the Government objected that Turkey had no jurisdiction or control
over the territory of the “TRNC”, which was an
independent and democratic de facto State, and not a
“subordinate local administration” of Turkey. The
applicant's immovable properties were situated in the “TRNC”
and were under its exclusive control. They had been expropriated by
administrative acts of the “TRNC” under the relevant laws
and constitutional provisions. The Government challenged the
principles affirmed by the Court in the case of Loizidou v. Turkey
((merits), 18 December 1996, Reports of Judgments and
Decisions 1996-VI).
2. Objection of inadmissibility ratione
temporis
- The
Government recalled that the occupation of northern Cyprus had taken
place in 1974, and therefore before the recognition, by Turkey, of
the compulsory jurisdiction of the Court (22 January 1990). They
argued that the application should be rejected as being incompatible
ratione temporis with the provisions of the Convention.
Furthermore, the situation complained of was not a continuing one and
there was no causal link between the 1974 Turkish military
intervention and the alleged violations of the applicant's property
rights after 22 January 1990.
3. Objection of inadmissibility on the grounds of
non-exhaustion of domestic remedies and lack of victim status
- In
their further observations of 23 October 2003, the Government raised
a preliminary objection concerning non-exhaustion of domestic
remedies in the light of the Law on Compensation for Immovable
Properties Located within the boundaries of the “TRNC”,
which was adopted on 30 June 2003 (Law no. 49/2003). They
also noted that since 23 April 2003, Greek Cypriots had free
access to the north of the island by showing passports at specified
crossing points. Administrative and judicial remedies in the “TRNC”
were therefore accessible to them.
- Law
no. 49/2003 provided for the establishment of an independent
Immovable Property Determination, Evaluation and Compensation
Commission with jurisdiction to award compensation for Greek-Cypriot
immovable properties in the “TRNC”, on the basis of the
market value on 20 July 1974, plus compensation for the loss of
use, loss of income and increases in the value of property. The
decisions of this Commission could be appealed to the High
Administrative Court. Given the existence of this remedy, the
applicant could no longer claim to be a victim of a violation of his
rights under Article 1 of Protocol No. 1.
B. The applicant's arguments
- Relying
on the case-law developed by the Court in the case of Loizidou
((merits), cited above), the applicant alleged that the facts
complained of were imputable to Turkey for the purposes of the
Convention. He submitted that the starting point for the Court's
jurisdiction ratione temporis should be fixed at 28 January
1987, when Turkey accepted the jurisdiction of the Commission. From
that date onwards, there had been a continuing violation of his
rights, as he had been constantly denied access to his properties.
- The
applicant alleged that Law no. 49/2003 was aimed at providing a false
and illusory domestic remedy in order to avoid the property claims of
Greek Cypriots being adjudicated by the European Court of Human
Rights. Furthermore, the objection of non-exhaustion had been raised
after the application had been declared admissible. Law no. 49/2003
had not existed at the time when the application was lodged, did not
provide a sufficient and effective remedy, was discriminatory and
took as its basis that the expropriation was lawful. Furthermore, the
applicant could lose his victim status only if the violation of the
Convention was expressly recognised and fully remedied by the
respondent Government's authorities. This had not happened in the
present case.
C. Third-party intervener's arguments
- The
Government of Cyprus recalled that in the case of Loizidou (cited
above) the Court had found that Turkey had responsibility for
securing human rights in the occupied area of Cyprus. They challenged
the respondent Government's allegations that the “TRNC”
was a State or an entity with effective authority, the creation of
which had interrupted the chain of any Turkish responsibility for the
events which had taken place in northern Cyprus. They further
reiterated that the violations of the right of property which
occurred in the “TRNC” territory constituted a continuing
situation and not an instantaneous act of deprivation of ownership.
- The
third-party intervener further submitted that the compensation
available under Law no. 49/2003 did not alter the fact that the
Court did not recognise the acts of the “TRNC” as acts of
expropriation. In any event, the said law did not provide any redress
for breaches of Article 8 of the Convention and applied only to an
extremely restricted category of violations of the right of property.
It could not be considered an effective domestic remedy to be
exhausted in relation to claims introduced or declared admissible
before it was enacted or enforced. Finally, its provisions were
incompatible with Articles 6, 13 and 14 of the Convention as well as
with Article 1 of Protocol No. 1.
D. The Court's assessment
- In
its decision on the admissibility of the application, the Court
noted:
“the respondent Government have not provided any
observations on the admissibility of the case, although they have
been given ample opportunity to do so. It must, therefore, be assumed
that they do not contest the admissibility of the complaint under
Article 1 of Protocol No. 1, taken alone and in conjunction with
Article 14 of the Convention.”
- The
Court does not see any reason to depart from this finding. On that
account, the Government are in principle estopped from raising their
objections to admissibility at this stage (Rule 55 of the Rules of
Court; see, inter alia, Amrollahi v. Denmark, no.
56811/00, § 22, 11 July 2002, and Nikolova v. Bulgaria
[GC], no. 31195/96, § 44, ECHR 1999-II).
- In
any event, and in so far as certain of the respondent Government's
objections could be considered to have been raised at the
admissibility stage by implication, having regard to their pleadings
in the Loizidou case ((preliminary objections), 23 March 1995,
Series A no. 310, and (merits), cited above), the Court recalls
that the objections of inadmissibility ratione loci and
ratione temporis were duly examined and rejected in the
Loizidou case (op. cit.) and in the case of Cyprus
v. Turkey ([GC], no. 25781/94, §§ 69-81,
ECHR 2001-IV). It sees no reason to depart from its reasoning and
conclusions on these two objections in the instant case.
- Lastly,
as regards the objections of non-exhaustion of domestic remedies and
lack of victim status raised by the Government in their further
observations of 23 October 2003 relating to the Law on Compensation
for Immovable Properties Located within the Boundaries of the “TRNC”,
the Court notes that these objections were raised after the
application was declared admissible. They cannot, therefore, be taken
into account at this stage of the proceedings (see Demades v.
Turkey (merits), no. 16219/90, § 20, 31 July 2003).
26. It
follows that the Government's preliminary objections should be
dismissed.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that the Turkish occupation of northern Cyprus
had prevented him from having access to his plots of land situated in
Kyrenia, Famagusta and Nicosia.
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 they had no knowledge as to whether the
applicant had been the shareholder of any company and/or had owned
any plots of land in northern Cyprus. No proof had been provided of
his allegations in this respect, which should be rejected as being
unsubstantiated.
- They
further observed that under Article 159 of the “TRNC”
Constitution, all immovable property abandoned from 1975 onwards
belonged to the State. The Constitution and laws of the “TRNC”
should be regarded as a valid legal basis for the expropriation of
the applicant's properties. The question of compensation for the loss
of property or of the return of displaced persons to their former
residences could not be settled by individual applications to the
Court, but should be discussed and solved at the political level. In
the current political situation on the island, it would be
unrealistic to recognise to individual applicants the right to have
access to their properties.
2. The applicant
- The
applicant considered that he had submitted all the necessary evidence
of his ownership over the properties at issue. His titles of
ownership had been registered in the District Lands Office. However,
at the time of the Turkish military intervention the applicant had
been forced to flee and had been unable to take with him the title
deeds. From July 1974 onwards, the records of the District Lands
Office had been in the hands of the respondent Government, which
should have produced them before the Court. The authorities of the
Republic of Cyprus had reconstructed the Land Books and had issued
certificates of affirmation of title. These certificates were the
best evidence available in the absence of the original records or
documents.
- The
applicant recalled that in the case of Loizidou ((merits),
cited above), the Court had found that Article 159 of the “TRNC”
Constitution could not have the effect of depriving the owners of
their properties. He alleged that the interference with his rights
had lacked a valid legal basis, had not served a legitimate aim, and
had in any event not been proportionate to the purported aim of
finding housing for Turkish Cypriots.
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 District Lands Office 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 9 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 and 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
(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 his property as well as any
compensation for the interference with his property rights.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION AND
OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH 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 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. They noted that the differentiation
of the Greek and Turkish-Cypriot communities had been a consequence
of the political situation on the island which could not give rise to
an issue of discrimination under Article 14 of the Convention.
- The
Government of Cyprus submitted that the policy of the Turkish
authorities in the occupied area as far as Greek-Cypriot homes and
properties were concerned had been based upon racial discrimination.
This was incompatible with Article 14 of the Convention and illegal
in terms of customary or general international law.
- The
Court has found the respondent Government to be in breach of Article
1 of Protocol No. 1. In so doing, it has reaffirmed Turkey's
responsibility under the Convention for that breach under Article 1
of the Convention. The applicant's separate complaint under that
Article adds nothing to the breaches established, it being recalled
in any event that Article 1 is a framework provision that cannot
be breached on its own (see Ireland v. the United Kingdom, 18
January 1978, § 238, Series A no. 25, and Eugenia
Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90,
§ 42, 31 July 2003). It is therefore not necessary to
examine this complaint.
- The
Court further recalls that in the above-mentioned Cyprus v. Turkey
case, it found that, in the circumstances of that case, the Cypriot
Government's complaints under Article 14 amounted in effect to the
same complaints, albeit seen from a different angle, as those
considered in relation to Article 1 of Protocol No. 1. Since it
had found a violation of the latter provision, it considered that it
was not necessary in that case to examine whether there had been a
violation of Article 14 taken in conjunction with Article 1 of
Protocol No. 1 by virtue of the alleged discriminatory treatment of
Greek Cypriots not residing in northern Cyprus as regards their
rights to the peaceful enjoyment of their possessions (§ 199).
- The
Court sees no reason in this case to depart from that approach.
Bearing in mind its conclusion on the complaint under Article 1 of
Protocol No. 1, it finds that it is not necessary to carry out a
separate examination of the complaint under Article 14 (see, mutatis
mutandis, Eugenia Michaelidou Ltd and Michael Tymvios,
cited above, §§ 37-38).
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
her just satisfaction claims of September 1999, the administrator of
the applicant's estate requested 3,913,615 Cypriot pounds (CYP –
approximately 6,686,802 euros (EUR)) for pecuniary damage. She relied
on an expert's report assessing the value of the applicant's losses
which included the loss of annual rent collected or expected to be
collected from renting out the plots of land, 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 administrator of the applicant's estate did
not claim compensation for any purported expropriation since he was
still the legal owner of the properties. The evaluation report
contained a description of the Districts of Nicosia, Famagusta and
Kyrenia, in which the applicant's plots were situated.
- The
valuation report referred to 44 plots of land. Its starting point was
the annual rental value of each property in 1974, calculated on the
basis of a percentage (between 5 and 7%) of the market value of the
plots or assessed by comparing the rental value of similar lands at
the relevant time. This sum was subsequently adjusted upwards
according to an average annual
rental increase of 12% for the plots with residential use and of 7%
for agricultural lands. Compound interest for delayed payment was
applied at a rate of 8% per annum, the total sum due for interest
being CYP 1,245,652 (approximately EUR 2,128,321).
- According
to the expert, the total 1974 market value of the 44 plots of land
owned by the applicant was CYP 350,610 (approximately EUR 599,052),
while the total rental value was CYP 22,127.87 (approximately EUR
37,807).
- In
a letter of 28 January 2008 the administrator of the applicant's
estate observed that a long lapse of time had passed since she had
presented her claims for just satisfaction and that the claim for
pecuniary losses needed to be updated according to the increase of
the market value of land in Cyprus (between 10 and 15% per annum).
- In
her just satisfaction claims of September 1999, the administrator of
the applicant's estate claimed CYP 40,000 (approximately EUR 68,344)
in respect of non-pecuniary damage. She 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 Article 14 of the Convention.
(b) The Government
- Following
a request from the Court, on 15 September 2008 the Government filed
comments on the claims for just satisfaction. They observed that it
had been originally stated in the application that the private
trading companies "A. Solomonidis Ltd", and "Solomonidis
& Kozolidis Ltd" were, together with the applicant,
joint owners of 99 plots of land in northern Cyprus. However, no
evidence had been produced as to the legal status of these companies;
the identity of their shareholders and directors was unknown and
there was no document authorising the applicant to act on their
behalf. Moreover, no title of ownership over the properties at issue
had been produced.
- The
Government further noted that Mr Antonakis Solomonides had also been
one of the applicants in the case of Loizou and Others v. Turkey
(no. 16682/90, declared admissible on 18 May 1999), and that the
just satisfaction claims submitted in that case were identical to the
ones submitted in the context of the present application.
- 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 claims for just satisfaction
made by the administrator of the applicant's estate.
3. The Court's assessment
- The
Court first notes that on 17 June 2003 the applicant's lawyer
declared that the private trading companies "A. Solomonidis
Ltd", and "Solomonidis & Kozolidis Ltd" were not
the owners of the properties claimed in the application (see
paragraph 11 above). The question of the legal status of these
companies and of the applicant's entitlement to act on their behalf
is therefore irrelevant for assessing the issue of pecuniary damage.
Moreover, the Government's submission that doubts might arise as to
the applicant's title of ownership over the plots of land at issue
is, in substance, an objection of incompatibility ratione materiae
with the provisions of Article 1 of Protocol No. 1. In this
respect, 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 35 above). As to the fact that Mr
Antonakis Solomonides had also been one of the applicants in the case
of Loizou and Others v. Turkey, the Court is of the opinion
that this issue should be addressed in the context of the examination
of the merits of that application.
- 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 both 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 administrator of the applicant's estate of the 1974 market
value of the applicant's plots 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
her just satisfaction claims of September 1999, the administrator of
the applicant's estate sought CYP 6,090.93 (approximately EUR 10,406)
for the costs and expenses incurred before the Court. This sum
included 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.
FOR THESE REASONS, THE COURT
- Holds unanimously that the administrator of the
applicant's estate has 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 unanimously that it is not necessary to
examine whether there has been a violation of Article 1 of the
Convention and of Article 14 of the Convention taken in conjunction
with Article 1 of Protocol No. 1;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the 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 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
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.
T.L.E.
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 a
violation of Article 1 of Protocol No. 1.
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, no. 46347/99, § 37, 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, 22 May 2001).
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, 6
September 2001).
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,
5 September 2002; Slaviček v. Croatia,
no. 20862/02, 4 July 2002; Andrášik and Others
v. Slovakia, nos. 57984/00, 60226/00, 60242/00, 60679/00,
60680/00 and 68563/01; and Içyer v. Turkey, no.
18888/02, 29 January 2002).
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 case,
no. 31443/96, 22 June 2004).
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,
28 April 2004).
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 v. Turkey, 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.
