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FOURTH
SECTION
CASE OF ALEXANDROU v. TURKEY
(Application
no. 16162/90)
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 Alexandrou 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. 16162/90) 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, Mrs Andromachi Alexandrou
(“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 her from having access to her
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
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
- The
applicant was born in 1933 and lives in Nicosia.
- The
applicant claimed that she was the owner of 109 plots of land in the
District of Kyrenia. In support of her claim to ownership, on
17 June 2003 the applicant produced copies of the relevant
title deeds.
- As
a result of the 1974 Turkish military intervention, the applicant had
been refused access to her property, which was located in the area
under the occupation and overall control of the Turkish military
authorities. She claimed that she had continuously been prevented
from entering the northern part of Cyprus because of her
Greek-Cypriot origin.
- In
May 1996 the applicant transferred part of her properties to her
children. On 11 February 2008 she informed the Court that on 30 June
2003 she had transferred to her daughter the ownership of ten plots
of land.
THE LAW
I. 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 enunciated 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 violation 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 increase 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
- 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 her 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 took 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
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 and 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).
22. It
follows that the Government's preliminary objections should be
dismissed.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that the Turkish occupation of northern Cyprus
had prevented her from having access to her plots of land situated in
Kyrenia.
She
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 alleged that they were not aware of the applicant's
alleged ownership of “109 plots of lands in the District of
Kyrenia”. As no other specification of the properties had been
given, it was impossible for the “TRNC” authorities to
trace them. They considered that the applicant had not provided
evidence in support of her claim to ownership and that her
allegations should be rejected as being unsubstantiated.
- The
Government further observed that under Article 159 of the “TRNC”
Constitution, all immovable property which had been abandoned since
1975 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 situation of the island, it would be unrealistic to
recognise to individual applicants the right to access to their
properties.
2. The applicant
- The
applicant alleged that the interference with her property rights had
not served any legitimate aim, had not had a valid legal basis 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 the “TRNC” authorities
were in possession of all the records of the Department of Lands and
Surveys relating to the title to properties in northern Cyprus. It
was therefore the duty of the respondent Government to produce them.
- They
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 8 above) provide prima facie evidence that she had a
title of ownership over the properties at issue. As the respondent
Government failed to produce convincing evidence in rebuttal, the
Court considers that the applicant had a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court recalls that in the aforementioned Loizidou case
((merits), cited above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact that the
applicant has been refused access to the land since 1974, she has
effectively lost all control over, as well as all possibilities to
use and enjoy, her property. The continuous denial of access must
therefore be regarded as an interference with her rights under
Article 1 of Protocol No. 1. Such an interference cannot, in the
exceptional circumstances of the present case to which the applicant
and the Cypriot Government have referred, be regarded as either a
deprivation of property or a control of use within the meaning of the
first and second paragraphs of Article 1 of Protocol No. 1. However,
it clearly falls within the meaning of the first sentence of that
provision as an interference with the peaceful enjoyment of
possessions. In this respect the Court observes that hindrance can
amount to a violation of the Convention just like a legal impediment.
64. Apart from a passing reference to the doctrine of
necessity as a justification for the acts of the 'TRNC' and to the
fact that property rights were the subject of intercommunal talks,
the Turkish Government have not sought to make submissions justifying
the above interference with the applicant's property rights which is
imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
- In
the case of Cyprus v. Turkey (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 and continues to be a violation of
Article 1 of Protocol No. 1 to the Convention by virtue of the fact
that the applicant is denied access to and control, use and enjoyment
of her property as well as any compensation for the interference with
her property rights.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against her in the
enjoyment of her rights under Article 1 of Protocol No. 1. She
alleged that this discrimination had been based on her national
origin and religious beliefs.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
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 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 Eugenia Michaelidou Ltd and Michael Tymvios
v. Turkey, no. 16163/90, §§ 37-38, 31 July
2003).
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
her just satisfaction claims of October 1999, the applicant requested
5,401,174 Cypriot pounds (CYP –
approximately 9,228,445 euros (EUR)) for pecuniary damage. She relied
on an expert's report assessing the value of her losses which
included the loss of annual rents collected or expected to be
collected from renting out her 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 October 1999. The applicant did not claim compensation for any
purported expropriation since she was still the legal owner of the
properties. The evaluation report contained a description of Vasilia
and Lapithos, the villages in which the applicant's plots of land
were situated.
- The
valuation report referred to 63 plots of land. Its starting point was
the annual rental value of these properties in 1974, calculated on
the basis of a percentage (5%) of their market value 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 land. Compound interest for delayed
payment was applied at a rate of 8% per annum, the total sum due for
interest being CYP 2,050,518 (approximately EUR 3,503,515).
- According
to the expert, in 1974 the total market value of the 63 plots of land
at issue was CYP 654,041.5 (approximately EUR 1,117,495), while the
total annual rent obtainable from them was CYP 38,189 (approximately
EUR 65,249).
- In
a letter of 28 January 2008 the applicant 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). She further noted that the
plot identified with number 63 in the valuation report was not
registered in her name, but in the name of her son. It should
therefore not be taken into consideration for the purposes of just
satisfaction. Moreover, on 30 June 2003 the applicant had transferred
ten plots of land to her daughter (see paragraph 10 above); for these
ten plots she sought compensation for the loss of use of property
only until 2003.
- In
her just satisfaction claims of October 1999, the applicant further
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 applicant's claims for just satisfaction. They
observed that, in spite of the fact that the applicant had declared
to be the owner of 109 plots of land, her claim for pecuniary damage
concerned only 63 plots. Moreover, it appeared that 43 plots had been
transferred to the applicant's children in May 1996, that 10 other
plots were given to the applicant's daughter on 30 June 2003 and that
the plot identified with number 63 in the valuation report was not
registered in the applicant's name. In the Government's view, this
meant that the alleged prejudice should be determined only in respect
of 10 plots of land, which were not sufficiently identified on the
basis of the relevant documents.
- The
valuation report had apparently not taken into account the above
mentioned transfers of ownership. 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 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 observed that it would be interesting to be informed about
the values declared at the Land Office in southern Cyprus when the
plots of land had been transferred.
- The
Government further submitted that Turkey had recognised the
jurisdiction of the Court on 21 January 1990 and not in January 1987
and that the applicant's children had applied to the Immovable
Property Determination, Evaluation and Compensation Commission. In
its decisions nos. 21 and 23 the Commission awarded remedies for the
following properties transferred by the applicant to her children:
(a) Vasilia,
registration no. 6004, sheet/plan XI/13, plot no. 304/1, field,
share: whole, area: 3,874 sq. m;
(b) Vasilia,
registration no. 6006, sheet/plan XI/13, plot no. 304/3, field,
share: whole, area: 2,481 sq. m;
(c) Vasilia,
registration no. 5769, sheet/plan XI/22E2, plot no. 9/8, field,
share: ½, area: 443,258 sq. m;
(d) Vasilia,
registration no. 5913, sheet/plan XI/5.W.2, plot no. 32/9, building
plot, share: whole, area: 539 sq. m;
(e) Vasilia,
registration no. 5914, sheet/plan XI/5.W.2, plot no. 32/10, building
plot, share: whole, area: 548 sq. m;
(f) Vasilia,
registration no. 5915, sheet/plan XI/5.W.2, plot no. 32/11, building
plot, share: whole, area: 529 sq. m;
(g) Vasilia,
registration no. 5920, sheet/plan XI/5.W.2, plot no. 32/16, field,
share: whole, area: 1,598 sq. m;
(h) Vasilia,
registration no. 5933, sheet/plan XI/5.W.2, plot no. 32/29, building
plot, share: whole, area: 697 sq. m.
- It
followed that an award had already been made in respect to some plots
of land originally included in the present application.
- In
view of the above, the Government also considered that the question
of compensation for the properties allegedly remaining in the name of
the applicant should be referred to the Immovable Property
Determination, Evaluation and Compensation Commission, an organ which
was in a better position to deal with complicated property issues.
- 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 claims for just
satisfaction.
3. The Court's assessment
- The
Court first notes that the Government's submission that the damage
suffered by the applicant should be determined by the Immovable
Property Determination, Evaluation and Compensation Commission and
not by the Strasbourg organs is, in substance, a repetition of the
objection of non-exhaustion of domestic remedies. Such an objection
has been rejected by the Court for the reasons indicated in paragraph
21 of the present judgment. The Court does not see any reason to
depart from its conclusions on this issue.
- 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 her 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 applicant sought
CYP 4,000 (approximately EUR 6,834) for costs and expenses. This sum
included the costs of the expert report assessing the value of her
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
- 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 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 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, 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.
