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FOURTH
SECTION
CASE OF DIOGENOUS AND TSERIOTIS v. TURKEY
(Application
no. 16259/90)
JUDGMENT
(Just satisfaction)
STRASBOURG
26 October 2010
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 Diogenous and Tseriotis 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 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16259/90) 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 two Cypriot nationals, Mrs
Anna Diogenous and Mrs Pandora Tseriotis (“the
applicants”), on 23 February 1990.
- In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court dismissed various preliminary objections
raised by the Turkish Government and found continuing violations of
Article 8 of the Convention by reason of the complete denial of the
right of the applicants to respect for their home and of Article 1 of
Protocol No. 1 to the Convention by virtue of the fact that the
applicants were denied access to and control, use and enjoyment of
their properties as well as any compensation for the interference
with their property rights. Furthermore, it found that it was not
necessary to examine the applicants' complaint under Article 1 of the
Convention (Diogenous and Tseriotis v. Turkey, no. 16259/90,
§§ 11, 23, 32 and 34 and points 1-4 of the operative
provisions, 22 September 2009).
- Under
Article 41 of the Convention the applicants sought just satisfaction
of 632,668 Cypriot pounds (CYP –
approximately 1,080,976 euros (EUR)) for the deprivation of their
properties concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
31 December 2007. Two valuation reports, setting out the basis of the
applicants' loss, were appended to their observations. Furthermore,
the applicants claimed approximately EUR 255,032 each in respect
of non-pecuniary damage and approximately EUR 11,287 for the costs
and expenses incurred before the Court.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it in whole and invited
the Government and the applicants to submit, within three months,
their written observations on that issue and, in particular, to
notify the Court of any agreement they might reach (ibid., §§
49 and 52, and point 5 of the operative provisions).
- On
4 March 2010 the Court invited the applicants and the Government to
submit any materials which they considered relevant to assessing the
1974 market value of the property concerned by the principal
judgment. The applicants were moreover invited to submit written
evidence that the property at stake was still registered in their
name or to indicate and substantiate any transfer of ownership which
might have taken place.
- The
applicants and the Government each filed observations on these
matters. On 26 May 2010 the applicants produced certificates of
ownership of Turkish-occupied immovable property issued by the
Department of Lands and Surveys of the Republic of Cyprus. It
transpires from these documents that on 16 March 2010 the property
described in paragraph 13 below was registered in the name of the
applicants.
THE LAW
I. PRELIMINARY ISSUE
- In
a letter of 22 April 2010 the Government requested the Court to
decide that it was not necessary to continue the examination of the
applicants' just satisfaction claims. They invoked the principles
affirmed by the Grand Chamber in Demopoulos and Others v. Turkey
([GC] (Dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03,
10200/04, 14163/04, 19993/04, 21819/04, 1 March 2010) and argued
that the applicants should address their claims to the Immovable
Property Commission (the “IPC”) instituted by the “TRNC”
Law 67/2005. They reiterated their position on the issue of
exhaustion of domestic remedies in the present case and in other
similar cases on 8 and 22 June 2010.
- The
Court first observes that the Government's submissions were
unsolicited; they were received by the Registry long after the
expiration of the time-limit for filing comments on just satisfaction
and almost two months after the delivery of the Grand Chamber's
decision in Demopoulos. It could therefore be held that the
Government are estopped from raising the matter at this stage of the
proceedings.
- In
any event, the Court cannot but reiterate its case-law according to
which objections based on non-exhaustion of domestic remedies raised
after an application has been declared admissible cannot be taken
into account at the merits stage (see Demades v. Turkey (merits),
no. 16219/90, § 20, 31 July 2003, and Alexandrou
v. Turkey (merits), no. 16162/90, § 21, 20 January
2009) or at a later stage. This approach has not been modified by the
Grand Chamber, as the cases of Demopoulos and Others had not
been declared admissible when Law 67/2005 entered into force and when
Turkey objected that domestic remedies had not been exhausted.
- Furthermore,
the Court considers that its previous finding in the present case
that the applicants were not required to exhaust the remedy
introduced by Law 67/2005 constitutes res judicata. It recalls
that after the compensation mechanism before the IPC was introduced,
the Government raised an objection based on non-exhaustion of
domestic remedies. This objection was rejected in the principal
judgment (see paragraph 11 of the principal judgment and point 1 of
its operative provisions). The Government also unsuccessfully
requested the referral of the case to the Grand Chamber.
- It
follows that the Government's request to stay the examination of the
applicants' claims for just satisfaction should be rejected. The
Court will therefore continue to examine the case under Article 41 of
the Convention.
II. 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 applicants
- In
their just satisfaction claims of September 1999, the applicants
requested CYP 245,299 (approximately EUR 419,117) 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 their house in the District
of Kyrenia, plus interest from the date on which such rents were due
until the day of payment. In February 1985 the house at issue
had been donated to the applicants in equal shares by their mother.
It had been constructed on plot no. 119 (registration no. 1204,
sheet/plan XII/20.E.1, Block D, area: 725 square metres), located on
the beach of Akti Kimonos; it consisted of 2 garages/playroom/beach
facilities on the sea level, a living-dining area with a fire-place,
one bedroom, a shower, a kitchen and a large covered veranda on the
upper ground floor, four bedrooms with a bathroom on the first floor
(see paragraph 8 of the principal judgment).
- The
rent claimed was for the period dating back to January 1987,
when the respondent Government accepted the right of individual
petition, until January 2000. The applicants did not claim
compensation for any purported expropriation since they were still
the legal owners of the property. The valuation report contained a
description of the town of Kyrenia, of its development perspectives
and of the applicants' property.
- The
starting point of the valuation report was the rental value of the
applicants' property in 1974, calculated as a percentage (5 %)
of its estimated market value (CYP 75,000 – approximately EUR
128,145; the total annual rent in 1974 was thus CYP 3,750 –
approximately EUR 6,407). The expert took into account the fact that
the applicants' property was somehow unique and that there had been
no sales of really comparable plots. He further examined the trends
of rent increase on the basis of: (a) the nature of the area of
property; (b) the trends for the period 1970-1974; (c) the
trends in the unoccupied areas of Cyprus from 1974 onwards. This last
trend was based on the Consumer Price Index for rents and houses
issued by the Department of Statistics and Research of the Government
of Cyprus, increased by a percentage of 25 %. Moreover, compound
interest for delayed payment was applied at a rate of 8 % per
annum.
- On
23 January 2008, following a request from the Court for an update on
the developments of the case, the applicants submitted updated claims
for just satisfaction, which were meant to cover the loss of the use
of the property from 1 January 1987 to 31 December 2007. They
produced a revised valuation report, which, on the basis of the
criteria adopted in the previous report, concluded that the sum due
was CYP 314,591 plus CYP 318,077 for interest. The total
sum claimed under this head was thus CYP 632,668 (approximately
EUR 1,080,976). Taking into account the fact that their home was
freely occupied by the Turkish army, the applicants further claimed
the additional sum of EUR 3,500 per month, to be paid on a yearly
basis and to be adjusted in accordance with inflation for a period of
18 years or until the Turkish army vacated the premises.
- On
26 May 2010 the applicants produced another revised valuation report,
which was meant to cover the loss of use for the period between
1 January 1987 and 30 June 2010. The expert appointed by the
applicants considered that the whole sum due to his clients for
pecuniary damage was EUR 1,164,792.
- The
expert considered that the 1974 market value of the land on which the
applicants' house was constructed was CYP 60 (approximately EUR 102)
per square metre; the total price of this land was therefore
CYP 43,500 (approximately EUR 74,324). He referred, on this
point, to the sales, in 1972 and 1973, of four building sites in
Kyrenia, showing that the prices per square metre were CYP 23.92, CYP
25.46, CYP 45.30 and CYP 70 respectively. In the expert's
opinion, only the fourth building site had characteristics and size
(800 square metres) comparable to those of the applicants' plot of
land. Using as a starting point a table on “average cost per
square metre of dwellings in the private sector 1984-2008”, the
expert also considered that the cost of construction was CYP 30
(approximately EUR 51) per square metre for the lower ground floor
and CYP 55 (approximately EUR 94) per square metre for the ground and
first floors, thus a total construction cost of CYP 16,860
(approximately EUR 28,806). Applying a “development factor”
of 25%, he concluded that the 1974 market value of the house and of
the land on which it was erected could be fixed at CYP 75,000
(approximately EUR 128,145).
- In
their just satisfaction claims of September 1999, the applicants
further claimed CYP 120,000 (approximately EUR 205,032) each in
respect of non-pecuniary damage. In particular, each of the
applicants claimed CYP 30,000 for the anguish and frustration
she suffered on account of the continuing violation of her property
rights. They stated that this sum had been calculated on the basis of
the sum awarded by the Court in the Loizidou case ((just
satisfaction), 28 July 1998, Reports of Judgments and Decisions
1998-IV), taking into account, however, that the period of time
for which the damage was claimed in the instant case was longer. The
applicants also claimed CYP 90,000 each for the distress and
suffering they had been subjected to due to the denial of their right
to respect for their home.
- In
their updated claims for just satisfaction of 23 January
2008, the applicants requested the additional sum of EUR
50,000 each for non-pecuniary damage.
(b) The Government
21. The
Government filed comments on the applicants' updated claims for just
satisfaction on 30 June 2008, 15 October 2008 and 22 June 2010. They
pointed out that the present application was part of a cluster of
similar cases raising a number of problematic issues and noted
that some applicants had shared properties and that it was not proved
that their co-owners had agreed to the partition of the possessions.
Nor, when claiming damages based on the assumption that the
properties had been rented after 1974, had the applicants shown that
the rights of the said co-owners under domestic law had been
respected.
- The
Government further submitted that as an annual increase of the value
of the properties had been applied, it would be unfair to add
compound interest for delayed payment, and that Turkey had recognised
the jurisdiction of the Court on 21 January 1990, and not in January
1987. In any event, the alleged 1974 market value of the properties
was exorbitant, highly excessive and speculative; it was not based on
any real data with which to make a comparison and made insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international. The
report submitted by the applicants 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 propert[y] [was] situated”. This report contained two
proposals, assessing, respectively, the sum due for the loss of use
of the property and its present value. The second proposal was made
in order to give the applicants 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 13 above. This property could also 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 applicants applied to the IPC, the latter
would have offered CYP 51,710.23 (approximately EUR 88,352) to
compensate the loss of use and CYP 55,078.40 (approximately
EUR 94,106) for the value of the property. According to an
expert appointed by the authorities of the “TRNC”, the
1974 open-market value of the property described in paragraph 13
above was CYP 9,000 (approximately EUR 15,377). Upon fulfilment of
certain conditions, the IPC could also have offered the applicants
exchange of their property with Turkish-Cypriot properties located in
the south of the island.
- In
their comments of 22 June 2010, the Government recalled that in the
case of Demopoulos and Others (cited above) the Grand Chamber
had found that the IPC was an adequate domestic remedy for those
claiming a violation of Article 1 of Protocol No. 1. Notwithstanding
the adoption of a judgment on the merits, it would still be open to
the applicants to apply to the IPC, which would calculate the current
value and the 1974 value of the property “in a credential way
based on actual data”. On 27 May 2010 the IPC had sent a letter
to the applicants' representative, inviting his clients to introduce
an application before it.
- The
Government recalled that under Law No. 67/2005, the following means
of redress were available: a) restitution; b) compensation;
c) exchange. The relevant provisions of the law at issue are
described in Demopoulos and Others (cited above, §§
35-37).
- The
Government further noted that in making its assessment as regarded
compensation for the loss of use, the IPC had collected data from the
Department of Lands and Surveys on the 1973-1974 purchase prices for
comparable properties. It had also examined the development of
interest rates of the Cyprus Central Bank. The loss of income was
then calculated by assuming that the obtainable rent would have been
5% of the value of the properties; this last value had been modified
every year on the basis of the land market value index. Cyprus
Central Bank interest rates had been applied on the sums due since
1974.
- Being
in possession of the land registers, the
Turkish-Cypriot authorities
were in a better position than the applicants and the Greek-Cypriot
authorities to assess the market values of the properties in a
realistic and reliable manner. The applicants had put forward
exaggerated claims and had tended to inflate the 1974 values of their
possessions. The Government therefore requested the Court to
rule on compensation on the basis of the calculations made by the
Turkish-Cypriot authorities, which were “credential and
objective in every aspect”.
- The
report prepared by the Turkish-Cypriot authorities confirmed that it
would be possible to envisage restitution of the property described
in paragraph 13 above. Had the applicants applied to the IPC,
the latter would have increased its offer up to CYP 59,142.85
(approximately EUR 101,051) to compensate the loss of use and up to
CYP 60,290.97 (approximately EUR 103,013) for the value of the
property. The expert appointed by the authorities of the “TRNC”
also confirmed the 1974 open-market value of the applicants' house as
indicated in paragraph 24 above.
- Finally,
the Government considered that the amount claimed in respect of
non-pecuniary damage was excessive and unrealistic; given the
existence of an effective domestic remedy, the Court should keep the
award for such damage to a minimum.
2. The Court's assessment
- The
Court recalls that it has concluded that there had been a continuing
violation of the applicants' rights guaranteed by Article 8 of
the Convention and Article 1 of Protocol No. 1 by reason of the
complete denial of the rights of the applicants with respect to their
home and the peaceful enjoyment of their properties in northern
Cyprus (see paragraphs 32 and 23 of the principal judgment).
Furthermore, its finding of a violation of Article 1 of Protocol
No. 1 was based on the fact that, as a consequence of being
continuously denied access to their house since 1974, the applicants
had effectively lost all access and control as well as all
possibilities to use and enjoy their property (see paragraph 21 of
the principal judgment). They are therefore entitled to a measure of
compensation in respect of losses directly related to this violation
of their rights as from the date of deposit of Turkey's declaration
recognising the right of individual petition under former Article 25
of the Convention, namely 22 January 1987, until the present time
(see Cankoçak v. Turkey, nos. 25182/94 and 26956/95, §
26, 20 February 2001, and Demades v. Turkey (just
satisfaction), no. 16219/90, § 21, 22 April 2008).
- In
connection with this, the Court observes that the affirmation of
ownership of Turkish-occupied immovable properties produced by the
applicants (see paragraph 6 above) show that on 16 March 2010 they
were still the owners of the property described in paragraph 13
above.
- In
the opinion of the Court, the valuations furnished by the applicants
involve a significant degree of speculation and make insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international (see
Loizidou (just satisfaction), cited above, § 31).
Accordingly, in assessing the pecuniary damage sustained by the
applicants, the Court has, as far as appropriate, considered the
estimates provided by them (see Xenides-Arestis v. Turkey
(just satisfaction), no. 46347/99, § 41,
7 December 2006). In general it considers as reasonable the
approach to assessing the loss suffered by the applicants with
reference to the annual ground rent, calculated as a percentage of
the market value of the property, that could have been earned during
the relevant period (Loizidou (just satisfaction), cited
above, § 33, and Demades (just satisfaction), cited
above, § 23). Furthermore, the Court has taken into account the
uncertainties, inherent in any attempt to quantify the real losses
incurred by the applicant (see Loizidou v. Turkey (preliminary
objections), 23 March 1995, § 102, Series A no. 310, and
(merits) 18 December 1996, § 32, Reports 1996-VI).
- The
Court notes that notwithstanding its request to submit material
relevant to assessing the 1974 market value of the applicants' house,
the parties have produced few elements in this respect. The
Government have relied on the accuracy of the IPC's calculations
(see paragraphs 23 and 27-28 above), while the applicants have
referred to the sales, in 1972 and 1973, of four building sites in
Kyrenia (see paragraph 18 above).
- The
Court further observes that the applicants submitted an additional
claim in the form of annual compound interest in respect of the
losses on account of the delay in the payment of the sums due. While
the Court considers that a certain amount of compensation in the form
of statutory interest should be awarded to the applicants, it finds
that the rates applied by them are on the high side (see, mutatis
mutandis, Demades (just satisfaction), cited above, §
24). Moreover, the Court does not see why the fact, claimed by the
applicants (see paragraph 16 above), that their house had been
occupied by the Turkish army should give entitlement to an additional
monthly sum.
- Finally,
the Court is of the opinion that an award should be made in respect
of the anguish and feelings of helplessness and frustration which the
applicants must have experienced over the years in not being able to
use their property as they saw fit and to enjoy their home (see
Demades (just satisfaction), cited above, § 29, and
Xenides-Arestis (just satisfaction), cited above, § 47).
- Having
regard to the above considerations, the Court is of the opinion that
the sums claimed by the applicants in respect of pecuniary and
non-pecuniary damage (respectively EUR 1,164,792 and EUR 510,064
– see paragraphs 17 and 19-20 above) are excessive. At the same
time, the amount which the “TRNC” authorities could have
offered the applicants in respect of loss of use (approximately
EUR 101,051 – see paragraph 29 above) does not seem to
take into due account the nature of the property owned by the
applicant and described in paragraph 13 above. It consisted in a
house erected on three levels located on the beach of Akti Kimonos.
Making its assessment on an equitable basis, the Court decides to
award the applicants EUR 200,000 in respect of pecuniary and
non-pecuniary damage.
B. Costs and expenses
- In
their just satisfaction claims of September 1999 relying on bills
from their representative, the applicants sought CYP 2,002.32
(approximately EUR 3,421) 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 their property.
In their written observations of 15 January 2004, the applicants
claimed additional legal fees for CYP 2,645 (approximately EUR
4,519). Finally, in their updated claims for just satisfaction of
23 January 2008, they submitted additional bills of costs for
the new valuation report and for legal fees amounting to EUR 392.15
and EUR 2,955.5 respectively. The total sum sought for
costs and expenses was thus approximately EUR 11,287.65.
Finally, on 26 May 2010 the applicants submitted that their further
legal fees and expert report's costs amounted to EUR 2,955.5 and EUR
1,000 respectively.
- The
Government did not comment on this point.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see, for
example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- The
Court notes that the case involved perusing a certain amount
of factual and documentary evidence and required a fair degree of
research and preparation. In particular, the
costs associated with producing valuation reports in view of the
continuing nature of the violations at stake were essential to enable
the Court to reach its decision regarding the issue of just
satisfaction (see Demades (just satisfaction), cited
above, § 34).
- Although
the Court does not doubt that the fees claimed were actually
incurred, it considers the amount claimed for the costs and expenses
relating to the proceedings before it excessive and decides to award
a total sum of EUR 8,000.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's request to
stay the examination of the applicants' claims for just satisfaction;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
200,000 (two hundred thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
