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FOURTH
SECTION
CASE OF ZAVOU AND OTHERS v. TURKEY
(Application
no. 16654/90)
JUDGMENT
(merits)
STRASBOURG
22
September 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 Zavou and Others 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 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16654/90) 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 thirty-seven Cypriot nationals, whose names and
dates of birth are indicated in the list annexed to the present
judgment (“the applicants”), on 26 January 1990.
- The
applicants were represented by Mr A. Adamides, a lawyer practising in
Limassol. The Turkish Government (“the Government”) were
represented by their Agent, Mr Z.M. Necatigil.
- The
applicants alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived them of their home and
properties.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
a decision of 26 September 2002 the Court declared the application
partly admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
- The
applicants all live in Limassol. Their dates of birth are indicated
in the list annexed to the present judgment.
- All the applicants claimed to be permanent residents of
Famagusta (northern Cyprus), where they had their homes as well as
other immovable properties.
- Upon
the 1974 Turkish intervention, the applicants left for southern
Cyprus. They claimed that they had been deprived of their property
rights, all their property being located in the area which was under
the occupation and control of the Turkish military authorities. They
had made several attempts to return to their homes and properties in
Famagusta, the last occasion being on 23 December 1989,
but they had not been allowed to do so by the Turkish military
authorities. The latter had prevent them from having access to and
from using their houses and properties.
- In
his memorial of 27 May 2003 the applicants' representative stated
that applicants nos. 2 to 5, 7 to 14 and 17 to 36 had decided not to
pursue their case any further and to withdraw their application. The
case was thus to be continued only in the names of applicants nos. 1
(Mrs Soula Zavou), 6 (Mrs Lenia Chrysostomou), 15 (Mrs Anastasia
Evengelides), 16 (Mrs Ariadni Evangelides) and 37 (Mrs Maro
Pouyourou).
- Applicant
no. 1 (Mrs Soula Zavou) claimed to be the owner of the following
immovable properties:
(a) Famagusta,
Chrysospyliotissa, plot no. 513, sheet/plan 33/12.4.2, block A,
registration no. AO-16/10/86; description: house; use:
residence, share: whole;
(b) Famagusta,
Ayios Ioannis, plot no. 320, sheet/plan 33/12.2.3, block A,
registration no. AO-16/10/86; description: block of flats;
use: commercial-rent; share: 1/5;
(c) Famagusta,
Ayios Loucas, plot no. 827, sheet/plan 33/11.W.1, block B
and plot no. 51, sheet/plan 33/11.W.1, block B, registration
no. BO-16/10/86; description: orange grove; share: 3/8.
- Applicant
no. 6 (Mrs Elenitsa (Lenia) Chrysostomou) claimed to be the
owner of the following immovable property:
Famagusta,
Chrysospyliotissa, plot no. 1178, sheet/plan 33/12.6.3, block A;
description: two houses; share: ½.
- Applicant
no. 15 (Mrs Anastasia Evangelides) claimed to be the owner of
the following immovable properties:
(a) Famagusta,
Chrisi Akti, plot no. 691, sheet/plan 33/21.1.IV, block A;
description: house; use: residence; share: whole;
(b) Famagusta,
Chrisi Akti, plot no. 693, sheet/plan 33/21.1.IV, block A;
description: house; use: rent; share: whole;
(c) Famagusta,
Salamis, plot no. 1885, sheet/plan 33/3.E.1, block D;
description: building site.
- Applicant
no. 16 (Mr Ariadni Evangelides) claimed to be the owner of the
following immovable property:
Famagusta,
Stavros, plot no. 701, sheet/plan 33/13.4.3, registration no. SDD
626/85; description: plot of Land with two houses; use: residence;
share: whole.
- Applicant
no. 37 (Mrs Maro Pouyourou) claimed to be the owner of the
following immovable properties:
(a) Famagusta,
Ayios Ioannis, plot no. 264, sheet/plan 33/12.3.4, block C;
description: house; use: residence; share: whole;
(b) Famagusta,
Komi Kepir, plots nos. 532 and 543, sheet/plan 7/46;
description: plots of land; use: agriculture; share: whole.
- In
support of their claims to ownership applicant nos. 1, 6, 15, 16 and
37 submitted certificates of affirmation of ownership of
Turkish-occupied immovable properties issued by the Republic of
Cyprus. They also produced affidavits in verification of their
personal status and immovable property rights.
THE LAW
I. WITHDRAWAL OF THE APPLICATION
- The
Court first notes that applicants nos. 2 to 5, 7 to 14 and 17 to 36
declared that they wished to withdraw their application (see
paragraph 10 above). The Court considers that, in these
circumstances, applicants nos. 2 to 5, 7 to 14 and 17 to 36 may be
regarded as no longer wishing to pursue their application, within the
meaning of Article 37 § 1 (a) of the Convention. Furthermore, in
accordance with Article 37 § 1 in fine, the Court finds
no special circumstances regarding respect for human rights as
defined in the Convention and its Protocols which require the
continued examination of the case with regard to the above-mentioned
applicants.
- In
view of the above, it is appropriate to strike the application out of
the list of cases as far as applicants nos. 2 to 5, 7 to 14 and 17 to
36 are concerned. The Court will accordingly examine only the
complaints introduced by applicants nos. 1, 6, 15, 16 and 37
(hereinafter referred to as “the applicants”).
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility for
non-exhaustion of domestic remedies and lack of victim status. The
Court observes that these objections are identical to those raised in
the case of Alexandrou v. Turkey (no. 16162/90, §§
11-22, 20 January 2009), and should be dismissed for the same
reasons.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants complained that since 1974, Turkey had prevented them from
exercising their right to the peaceful enjoyment of their
possessions.
They invoked Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government submitted that the applicants had not produced any title
deed, certificate of registration or other documents substantiating
their claims to ownership.
2. The applicants
- The
applicants maintained that the Government should have provided the
Court with the records of title for the properties at issue. They
underlined that they had no access to the relevant District Land
registries in northern Cyprus.
B. The Court's assessment
- The
Court first notes that the documents submitted by the applicants (see
paragraph 16 above) provide prima facie evidence that they 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 applicants had a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court recalls that in the case of Loizidou v. Turkey
((merits), Reports of Judgments and Decisions 1996-VI, §§
63-64, 18 December 1996), it reasoned as follows:
“63. ... as a consequence of the fact
that the applicant has been refused access to the land since 1974,
she has effectively lost all control over, as well as all
possibilities to use and enjoy, her property. The continuous denial
of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference
cannot, in the exceptional circumstances of the present case to which
the applicant and the Cypriot Government have referred, be regarded
as either a deprivation of property or a control of use within the
meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first
sentence of that provision as an interference with the peaceful
enjoyment of possessions. In this respect the Court observes that
hindrance can amount to a violation of the Convention just like a
legal impediment.
64. Apart from a passing reference to the
doctrine of necessity as a justification for the acts of the 'TRNC'
and to the fact that property rights were the subject of
intercommunal talks, the Turkish Government have not sought to make
submissions justifying the above interference with the applicant's
property rights which is imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
- In
the case of Cyprus v. Turkey ([GC], no. 25781/94,
ECHR 2001-IV) the Court confirmed the above conclusions (§§
187 and 189):
“187. The Court is persuaded that both
its reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation
of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus are being denied
access to and control, use and enjoyment of their property as well as
any compensation for the interference with their property rights.”
- The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus v.
Turkey cases (op. cit.; see also Demades v. Turkey
(merits), no. 16219/90, § 46, 31 July 2003).
- Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1 to the Convention by virtue of the fact that the 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.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicants submitted that in
1974 they had had their home in northern Cyprus. As they had been
unable to return there, they were the victims of a violation of
Article 8 of the Convention.
This provision reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- In
its decision on the admissibility of the application, the Court found
that the properties involved constituted a “home” for the
purposes of Article 8 § 1 of the Convention, and that
the impossibility for the applicants to return to their home
constituted an interference with their Article 8 rights.
- The
Court notes that since 1974 the applicants have been unable to gain
access to and to use their home. In this connection the Court recalls
that, in its judgment in the case of Cyprus v. Turkey (cited
above, §§ 172-175), it concluded that the complete
denial of the right of Greek Cypriot displaced persons to
respect for their homes in northern Cyprus since 1974 constituted a
continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General ...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
- The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
- Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention by reason of the complete denial of the right of
the applicants to respect for their home.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1
OF PROTOCOL NO. 1
- The
applicants complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against them in the
enjoyment of their rights under Article 8 of the Convention and
Article 1 of Protocol No. 1. They alleged that this discrimination
had been based on their national origin.
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
Court recalls that in the Alexandrou case (cited above, §§
38-39) it has found that it was not necessary to carry out a separate
examination of the complaint under Article 14 of the Convention. The
Court does not see any reason to depart from that approach in the
present case (see also, mutatis mutandis, Eugenia
Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90,
§§ 37-38, 31 July 2003).
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants submitted that, contrary to Article 13 of the Convention,
they did not have at their disposal any effective remedy to redress
the above-mentioned grievances.
This provision reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that the applicants have submitted no pleadings on this
point, including on the issue of the applicability of this Article.
It considers therefore that it is not necessary to examine this
complaint (see Demades (merits), cited above, § 48, and
Kyriacou v. Turkey (merits), no. 18407/91, § 42,
27 January 2009).
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicants
- In
their just satisfaction claims of 27 May 2003, applicants nos. 1, 6,
15 and 37 requested sums for pecuniary damage. They relied on
expert's reports assessing the value of their losses which included
the loss of annual rent collected or expected to be collected from
renting out their properties in northern Cyprus, 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 1990 until
December 2003. Applicants nos. 1, 6, 15 and 37 did not claim
compensation for any purported expropriation since they were still
the legal owners of the properties. The evaluation report contained a
description of the town of Famagusta, of its development perspectives
and of the applicants' properties.
- The
starting point of the expert's reports was the open market value of
the properties in August 1974. The annual rent obtainable from the
applicants' properties was then calculated as a percentage (varying
from 4% to 5%) of their estimated value in 1974. The expert further
took into account 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%. For
agricultural lands, the expert proceeded on the basis of a certain
annual rental value per decare (generally between CYP 25 and CYP 35
in 1974). Moreover, compound interest for delayed payment was applied
at a rate of 8% (6% from 2001 onwards) per annum.
- For
applicant no. 1, the figures given by the expert were the following:
-
property described in paragraph 11 (a) above: market value in 1974:
CYP 14,400 (approximately EUR 24,603); annual rent in 1974: CYP 576
(approximately EUR 984); estimated loss plus interest: CYP 51,676
(approximately EUR 88,293);
-
property described in paragraph 11 (b) above: market value in 1974:
CYP 95,000 (approximately EUR 162,317); annual rent in
1974: CYP 4,750 (CYP 950 – approximately EUR 1,623 – for
the 1/5 share belonging to the applicant); estimated loss plus
interest: CYP 85,229 (approximately EUR 145,622);
-
property described in paragraph 11 (c) above: rent payable in 1974
calculated on the basis of CYP 35 per decare; rental value of the
whole property in 1974: CYP 728 (CYP 273 – approximately EUR
466 – for the 3/8 shares belonging to the applicant); estimated
loss plus interest: CYP 18,633 (approximately EUR 31,836).
Thus,
the total sum claimed by applicant no. 1 for pecuniary damage was CYP
155,538 (approximately EUR 265,752).
- For
applicant no. 6, the expert considered that the 1974 market value of
the property described in paragraph 12 above was CYP 29,400
(approximately EUR 50,232), the 1974 annual rent was CYP 1,176
(approximately EUR 2,009) and the estimated loss plus interest was
CYP 105,504 (approximately EUR 180,264).
- For
applicant no. 15, the figures given by the expert were the following:
-
properties described in paragraph 13 (a) and (b) above: market value
in 1974: CYP 25,700 and CYP 13,500 respectively; 1974 total
annual rent for both properties: CYP 1,568 (approximately EUR 2,679);
estimated loss plus interest: CYP 140,672 (approximately EUR
240,352);
-
property described in paragraph 13 (c) above: market value in 1974:
CYP 3,000 (approximately EUR 5,125); estimated loss plus
interest: CYP 22,632 (approximately EUR 38,669).
Thus,
the total sum claimed by applicant no. 15 for pecuniary damage was
CYP 163,304 (approximately EUR 279,021).
- For
applicant no. 37, the figures given by the expert were the following:
-
property described in paragraph 15 (a) above: market value in 1974:
CYP 40,000 (approximately EUR 68,344); annual rent in 1974: CYP
2,000 (approximately EUR 3,417); estimated loss plus interest:
CYP 179,429 (approximately EUR 306,572);
-
property described in paragraph 15 (b) above: rent payable in 1974
calculated on the basis of CYP 25 per decare; rental value in 1974:
CYP 367.37 (approximately EUR 627); estimated loss plus
interest: CYP 25,071 (approximately EUR 42,836).
Thus,
the total sum claimed by applicant no. 37 for pecuniary damage was
CYP 204,500 (approximately EUR 349,408).
- On
24 January 2008, following a request from the Court for an update on
the developments of the case, applicants nos. 1, 6, 15 and 37
submitted updated claims for just satisfaction, which were meant to
cover the loss of the use of the properties from 1 January 1990 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 whole sum due for the loss of use was: EUR 416,572 for
applicant no. 1; EUR 282,213 for applicant no. 6; EUR 443,804 for
applicant no. 15; EUR 545,201 for applicant no. 37.
- In
their just satisfaction claims of 27 May 2003, the applicants
(including applicant no. 16) also claimed CYP 100,000 (approximately
EUR 170,860) each in respect of non-pecuniary damage. In
their updated claims for just satisfaction of 24 January 2008,
applicants nos. 1, 6, 15 and 37 increased their claim to CYP 140,000
(approximately EUR 239,204) each.
(b) The Government
- In
reply to the applicants' just satisfaction claims of 27 May 2003, the
Government submitted that the property ownership in the Maraş
area of Famagusta was in dispute because of the rights of a religious
trust known as Vakf. Once the latter had acquired ownership,
its real estate could not be alienated, transferred or inherited.
According to the information obtained from the authorities of the
“Turkish Republic of Northern Cyprus” (the “TRNC”),
some of the properties described in paragraphs 11-15 above (and
notably, the property of applicant no. 1 described in paragraph 11
(b) above, the property of applicant no. 6 described in paragraph 12
(a) above and the property of applicant no. 37 described in paragraph
15 (a) above) had been dedicated in perpetuity to the religious trust
known as Abdullah Paşa Vakf. They could not, therefore,
be transferred to any of the applicants. Any unlawful transfer of
Vakf property would be null and void. As the Evkaf
Administration of Cyprus had taken measures in respect of unlawfully
occupied Vakf properties, the Court should not deal with
matters which fall within the competence of the domestic
jurisdictions.
- The
Government also noted that during the last decades the landscape in
northern Cyprus had considerably changed and that these changes had
affected the applicants' properties. The issue of reciprocal
compensation for Greek-Cypriot property left in the north of the
island and Turkish-Cypriot property left in the south was very
complex and should be settled through negotiations between the two
sides rather than by adjudication by the European Court of Human
Rights.
- Challenging
the conclusions reached by the Court in the Loizidou case
((just satisfaction), Reports 1998-IV, 28 July 1998),
the Government considered that in cases such as the present one, no
award should be made by the Court under Article 41 of the Convention.
They underlined that the applicants' inability to have access to
their properties depended on the political situation on the island
and, in particular, on the existence of the UN recognized cease-fire
lines. If Greek-Cypriots were allowed to go to the north and claim
their properties, chaos would explode in Cyprus; furthermore, any
award made by the Court would undermine the negotiations between the
two parties. In any event, the legal situation had changed since the
adoption of the Loizidou judgment: Greek-Cypriot were allowed
to visit the northern part of the island and to have access to
remedies existing in the “TRNC”, and a new “Law on
Compensation for Immovable Properties Located within the boundaries
of the “TRNC”” had been adopted.
- The
Government filed comments on the applicants' updated claims for just
satisfaction on 30 June 2008 and 15 October 2008. They pointed out
that the present application was part of a cluster of similar cases
raising a number of problematic issues and maintained that the claims
for just satisfaction were not ready for examination. The Government
had in fact encountered serious problems in identifying the
properties and their present owners. The information provided by the
applicants in this regard was not based on reliable evidence.
Moreover, owing to the lapse of time since the lodging of the
applications, new situations might have arisen: the properties could
have been transferred, donated or inherited within the legal system
of southern Cyprus. These facts would not have been known to the
respondent Government and could be certified only by the
Greek-Cypriot authorities, who, since 1974, had reconstructed the
registers and records of all properties in northern Cyprus.
Applicants should be required to provide search certificates issued
by the Department of Lands and Surveys of the Republic of Cyprus. In
cases where the original applicant had passed away or
the property had changed hands, questions might arise as to whether
the new owners had a legal interest in the property and whether they
were entitled to pecuniary and/or non-pecuniary damages.
- The
Government further noted that some applicants had shared properties
and that it was not proven that their co-owners had agreed to the
partition of the possessions. Nor, when claiming damages based on the
assumption that the properties had been rented after 1974, had the
applicants shown that the rights of the said co-owners under domestic
law had been respected.
- The
Government 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 properties [were] situated”. This report contained two
proposals, assessing, respectively, the sum due for the loss of use
of the properties and their present value. The second proposal was
made in order to give the 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 properties
described in paragraphs 11 (b), 13 (a) and (b), 14 and 15 (a)
above. The other immovable properties referred to in the application
were possessed by refugees; they could not form the object of
restitution but could give entitlement to financial compensation, to
be calculated on the basis of the loss of income (by applying a 5%
rent on the 1974 market values) and increase in value of the property
between 1974 and the date of payment. Had the applicants applied to
the Immovable Property Commission, the latter would have offered CYP
851,035.4 (approximately EUR 1,454,079) to compensate the loss of use
and CYP 906,468.09 (approximately EUR 1,548,791) for the value
of the properties. According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of the applicants' properties
was the following:
-
property described in paragraph 11 (a) above: CYP 16,000
(approximately EUR 27,337);
-
property described in paragraph 11 (b) above: CYP 1,000
(approximately EUR 1,708);
-
property described in paragraph 11 (c) above: CYP 1,450
(approximately EUR 2,477);
-
property described in paragraph 12 above: CYP 10,000
(approximately EUR 17,086);
-
property described in paragraph 13 (a) above: CYP 35,000
(approximately EUR 59,801);
-
property described in paragraph 13 (b) above: CYP 20,000
(approximately EUR 34,172);
-
property described in paragraph 13 (c) above: CYP 4,000
(approximately EUR 6,834);
-
property described in paragraph 14 above: CYP 30,000
(approximately EUR 51,258);
-
property described in paragraph 15 (a) above: CYP 30,000
(approximately EUR 51,258);
-
property described in paragraph 15 (b) above: CYP 670
(approximately EUR 1,144).
- Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicants exchange of their properties
with Turkish-Cypriot properties located in the south of the island.
- Finally,
the Government did not comment on the applicants' submissions under
the head of non-pecuniary damage.
2. The Court's assessment
- The
Court first notes that applicant no. 16 has not submitted any claim
with respect to pecuniary damage. Therefore, no award should be made
in his favour under this head.
- As
to applicants nos. 1, 6, 15 and 37, the Court observes that the
Government's submission that doubts might rise as to their title of
ownership over the properties at issue (see paragraphs 47 and 50
above) is, in substance, an objection of incompatibility ratione
materiae with the provisions of Article 1 of Protocol No. 1. Such
an objection should have been raised before the application was
declared admissible or, at the latest, in the context of the parties'
observations on the merits. In any event, the Court cannot but
confirm its finding that the applicants had a “possession”
over the properties claimed in the present application within the
meaning of Article 1 of Protocol No. 1 (see paragraph 24 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicants of the 1974 market value of their properties is
reasonable. The question must accordingly be reserved and the
subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicants
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
their just satisfaction claims of 27 May 2003, relying on bills from
their representative, the applicants sought CYP 3,010.25
(approximately EUR 5,143) each for the costs and expenses incurred
before the Court. Applicants nos. 1, 6, 15 and 37 also sought the
reimbursement of the costs of the expert's report assessing the value
of their properties (amounting to CYP 402.5, 345, 460 and 402.5
respectively). In their updated claims for just satisfaction of
24 January 2008, applicants nos. 1, 6, 15 and 37 submitted
additional bills of costs for the new valuation report and for legal
fees amounting to EUR 392.98 and EUR 982.45 respectively
for each of them.
- 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
applicants.
FOR THESE REASONS, THE COURT
- Decides unanimously to strike the application
out of the list of cases as far as it concerns applicants nos. 2 to
5, 7 to 14 and 17 to 36 and to continue the examination of the case
with regard to the remaining applicants;
- Dismisses by six votes to one the Government's
preliminary objections;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Articles 13 and 14 of
the Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicants 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Karakaş
is annexed to this judgment.
N.B.
F.A.
ANNEX – LIST OF APPLICANTS
The
applicants of the present application, all permanent residents of
Famagusta until July 1974 and since then residents of Limassol, are
as follows:
- Soula
ZAVOU, born in 1950 in Famagusta.
- Clairi
ANGELIDOU, born in 1932.
- Iris
PROCOPIOU, born in 1944 in Famagusta.
- Chrystalleni
LOUCA, born in 1928 in Ayios Sergios, Famagusta.
- Loula
HILIMINDRI, born in 1914 in Famagusta.
- Lenia
CHRYSOSTOMOU, born in 1936 in Larnaca.
- Antigoni
ANTONIADOU, born in 1923 in Fiti.
- Mary
PIERIDOU, born in 1937 in Limassol.
- Photini
NEOPHITOU, born in 1928 in Famagusta.
- Koula
PHYSENTZOU, born in 1933 in Ayia Triada.
- Julia
TOUMAZI, born in 1920 in Famagusta.
- Magda
PSATHA, born in 1928 in Famagusta.
- Maro
TOUFEXI, born in 1928 in Famagusta.
- Sofoula
POTAMITOU, born in 1953 in Famagusta.
- Anastasia
EVANGELIDES, born in 1960 in Athens.
- Ariadni
EVANGELIDES, born in 1927 in Alexandria (Egypt).
- Andriani
THEODOROU, born in 1933 in Famagusta.
- Eleni
SOLOMONIDES (RIVI), born in 1921 in
Famagusta.
- Dora LOIZIDOU, born in 1931 in Famagusta.
- Domna MARKOU, born in 1935.
- Philio VARNAVA, born in 1932 in Famagusta.
- Niki PAVLIDOU, born in 1935 in Famagusta.
- Ersi DICOMITOU, born in 1939 in Famagusta.
- Dora BASILIADOU, born in 1939 in Famagusta.
- Militsa HADJIMANOLI, born in 1946 in Famagusta.
- Demetra (PAVLIDOU) IOANNIDOU, born in 1945 in Trikomo.
- Androula ZANGYLOU, born in 1943 in Famagusta.
- Fotoulla
FRANGESKOU, born in 1946 in Jerusalem.
29. Yiannoula
IOANNIDOU, born in 1935 in Kakopetria.
- Christina
KLERIDES, born in 1940 in Lefkonico.
- Dina CHOMATA, born in 1941 in Famagusta.
- Chariclea
PERICLEOUS, born in 1941 in Famagusta.
- Andry
PAPA, born in 1950 in Famagusta.
- Thelma
SEVASTOPOULOU, born in 1936 in Famagusta.
- Morfo
PANAYIOTOU, born in 1951 in Famagusta.
- Avgi PIERIDOU, born in 1929 in Famagusta.
- Maro
POUYOUROU, born in 1933 in Famagusta.
DISSENTING OPINION OF JUDGE KARAKAŞ
Unlike
the majority, I consider that the objection of non-exhaustion of
domestic remedies raised by the Government should not have been
rejected. Consequently, I cannot agree with the finding of violations
of Article 1 of Protocol No. 1 and Article 8 of the Convention, for
the same reasons as those mentioned in my dissenting opinion in the
case of Gavriel v. Turkey (no. 41355/98, 20
January 2009).
