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FOURTH
SECTION
CASE OF HADJIPROCOPIOU AND OTHERS v. TURKEY
(Application
no. 37395/97)
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 Hadjiprocopiou 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 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37395/97) 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 three Cypriot nationals, Mr Costas
Hadjiprocopiou, Mrs Elli Hadjiprocopiou and Mrs Maria
Hadjiprocopiou-Iacovidou (“the applicants”), on 22 July
1997.
- In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court held that the first and third applicants
had standing to continue the present proceedings also in the stead of
the second applicant stead (who died on 19 October 2000), 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 14 of the Convention
(Hadjiprocopiou and Others v. Turkey, no. 37395/97,
§§ 12, 13, 25, 35 and 37, and points 1-5 of the
operative provisions, 22 September 2009).
- Under
Article 41 of the Convention the applicants sought just satisfaction
of 1,469,815 Cypriot pounds (CYP –
approximately 2,511,326 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 357,548 each in respect
of non-pecuniary damage and approximately EUR 11,328 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., §§
52 and 55, and point 6 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 properties concerned by the principal
judgment. The applicants were moreover invited to submit written
evidence that the properties at stake were still registered in their
name or to indicate and substantiate any transfer of ownership which
might have taken place.
- The
first and third applicants and the Government each filed observations
on these matters. On 26 May 2010 the first and third applicants
produced a certificate of ownership of Turkish-occupied immovable
property issued by the Department of Lands and Surveys of the
Republic of Cyprus. It transpires from this document that on 30 March
2010 the properties described in paragraph 13 below were registered
in the name of “Iakovidou Maria”, daughter of Kostas
Hadjiprokopiou.
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 13 of the principal judgment and point 2 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 19 September 1999, the applicants
requested CYP 569,879 (approximately EUR 973,695) 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 building in
Famagusta, 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 January 2000. The applicants 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 Famagusta, of its development perspectives
and of the applicants' properties. The latter consisted of a plot of
land of 811 square metres (registered under plot no. 1222, sheet/plan
33/12.6.II, Block E) located in the Ayios Nicolaos Quarter of
Famagusta (Franklin Roosevelt street) on which a building had been
erected. This building comprised an underground parking space, eight
shops, a cafeteria and six apartments. The shops were on the ground
floor, while the apartments were on the first, mezzanine and second
floor. Until 14 August 1974 one of these apartments was used by
the three applicants as their home and another by the first applicant
as his surgery (see paragraphs 8 and 9 of the principal
judgment).
- The
valuation report calculated the annual rent obtainable from the
applicants' building on the basis of an affidavit of 4 June 1997, in
which the first applicant had stated that the total of all rents
without the family residence and the medical office was, in August
1974, CYP 510 (approximately EUR 871) per month. With the residence
and the office the rents would have come up to CYP 720 (approximately
EUR 1,230) per month, for a yearly total rent of CYP 8,712
(approximately EUR 14,885). The expert considered these amounts to be
reasonable; he further took into account the trends of rent increase
on the basis of: (a) the nature of the area of the properties; (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
24 January 2008, following a request from the Court for an update on
the developments of the case, the first and third applicants
submitted updated claims for just satisfaction, which were meant to
cover the period of loss of the use of the properties 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 whole sum due for the loss of use was
CYP 730,858 plus CYP 738,957 for interest. The total sum claimed
under this head was thus CYP 1,469,815 (approximately EUR 2,511,326).
- On
26 May 2010 the first and third applicants produced another 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 first and third applicants considered that the whole sums due to
his clients for pecuniary damage was EUR 2,706,050.
- The
expert considered that the 1974 market value of the land on which the
applicants' properties were constructed was CYP 60 (approximately EUR
102) per square metre; the total price of the applicants' land was
therefore CYP 48,660 (approximately EUR 83,140). The expert
referred, on this point, to a table of “comparable sales within
the municipal area of Famagusta town”, showing 21 transferral
of ownership of building sites, gardens and fields which had occurred
between 14 August 1971 and 6 May 1974. The prices paid per
square metre varied between CYP 5.36 (for a citrus garden) and CYP
46.18 (for a building site). 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 basement and CYP 65 (approximately EUR 111) per square metre for
the ground, first and second floors, thus a total construction cost
of CYP 65,585 (approximately EUR 112,058). Applying a
“development factor” of 1.20, he concluded that the 1974
market value of the applicants' land and building could be fixed at
CYP 152,000 (approximately EUR 259,707).
- On
22 June 2010 the first and third applicants produced a “report
on 1974 property prices ... in Turkish occupied northern Cyprus”,
prepared by “EMS Economic Management Ltd.”, to which were
annexed 43 copies of files of the Bank of Cyprus relating to loans,
mortgages and valuations undertaken in the period 1971-1974 with
respect to acquisition of properties in Famagusta. Their content was
summarised in a synoptic table. It appears from these documents that
Famagusta could be divided in areas with different prices for real
estate. In particular, the average 1974 price of a square metre of
constructible land was: (a) CYP 102 for the areas on the beach or
close to it, plus the new town centre; (b) CYP 44 in Ayios Nicolaos
and Varoshia; (c) CYP 18 in Stavros Famagusta; (d) CYP 16 to 25 in
Kato Varosi e Ayios Memnon; (e) CYP 41 in Ayia Zoni; (f) CYP 8 in
Ayios Loucas. The study concluded that in view of its location in the
new town centre of Ayios Nicolaos, the applicants' plot of land was
in the area with the highest prices, similar to those of beach
properties. A sample found on Roosevelt Avenue had a 1973 value of
CYP 100 (approximately EUR 170) per square metre. The first
and third applicants further submitted a research from the archives
of a property development company, showing the sales of twenty
apartments in the period 1970-1974. Four apartments were sold in 1974
for prices ranging from CYP 16,200 (two bedrooms) to CYP 19,000
(three bedrooms). According to this research, the compound annual
appreciation of the apartments since the Turkish invasion had been
9.50% per year.
- In
their just satisfaction claims of September 1999, the applicants
further claimed CYP 180,000 (approximately EUR 307,548) for each
of them in respect of non-pecuniary damage. In particular, each
applicant firstly claimed CYP 30,000 for the anguish and frustration
he or she suffered on account of the continuing violation of his or
her property rights. They stated that this sum had been calculated on
the basis of the sum awarded by the Court in the Loizidou v.
Turkey 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 and CYP 60,000
each for the violation of their rights under Article 14 of the
Convention.
- Finally,
in their updated claims for just satisfaction of 24 January 2008, the
first and third applicants requested the additional sum of
EUR 150,000 for non-pecuniary damage.
(b) The Government
- 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 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. Moreover, 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
properties to the State, thereby relinquishing title to and claims in
respect of them.
- 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 paragraph 13 above. In case the conditions for
restitution were not fulfilled, the applicants could claim 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 properties between 1974 and the date of payment. Had the first
and third applicants applied to the IPC, the latter would have
offered CYP 574,558.06 (approximately EUR 981,689) to compensate the
loss of use and CYP 611,982.25 (approximately EUR 1,045,632) for
the value of the properties. According to an expert appointed by the
authorities of the “TRNC”, the 1974 open-market value of
the applicants' properties was CYP 100,000 (approximately
EUR 170,860). Upon fulfilment of certain conditions,
the IPC could also have offered the applicants exchange of their
properties 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 properties “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 properties described
in paragraph 13 above. Had the first and third applicants
applied to the IPC, the latter would have increased its offer up to
CYP 657,142.82 (approximately EUR 1,122,794) to compensate
the loss of use and up to CYP 669,899.67 (approximately
EUR 1,144,590) for the value of the properties. The expert
appointed by the authorities of the “TRNC” also confirmed
the 1974 open-market value of the applicants' properties as indicated
in paragraph 23 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 35 and 25 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 real estate, the applicants had
effectively lost all access and control as well as all possibilities
to use and enjoy their properties (see paragraph 23 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, mutatis mutandis, 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 property produced by the
first and third applicants (see paragraph 6 above) show that on 30
March 2010 the properties described in paragraph 13 above were still
registered in the third applicant's name. It is also to be noted that
the first and third applicants had inherited the second applicant's
share in the properties and that on 30 March 2001 the first applicant
had donated ¼ of these properties to his daughter, the third
applicant (see paragraph 10 of the principal judgment). Even if the
first applicant has ceased to have a proprietary interest in the land
and building at issue after 30 March 2001, the Court considers that
the award for just satisfaction should be made in favour of the first
and third applicants, in equal shares. The applicants' representative
and the Government have not suggested that a different approach
should be adopted.
- 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 properties, 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
applicants (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 in response to its request to submit material
relevant to assessing the 1974 market value of the applicants'
properties, the Government have relied on the accuracy of the IPC's
calculations (see paragraphs 22 and 26-27 above), while the
applicants have referred to a table of 21 “comparable sales
within the municipal area of Famagusta town” (see paragraph 17
above). They have also produced two detailed studies on the prices in
northern Cyprus at the relevant time (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).
- 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 properties 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 2,706,050 and EUR 1,072,644 –
see paragraphs 16 and 19-20 above) are excessive. It considers that
the amount which, according to the Government, the IPC could have
offered the applicants in respect of loss of use (approximately
EUR 1,122,794 – see paragraph 28 above) constitutes a fair
basis for compensating the damage sustained by them. It recalls that
the properties concerned by the principal judgment are a plot of land
of 811 square metres located in the Ayios Nicolaos Quarter of
Famagusta, on which had been erected a building comprising
underground parking, eight shops, one cafeteria and six apartments
(see paragraph 13 above). Making its assessment on an equitable
basis, the Court decides to award the first and third applicants
EUR 1,200,000 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 representatives, the applicants sought CYP 2,026.42
(approximately EUR 3,462) for the costs and expenses incurred before
the Court. This sum included CYP 800 (approximately EUR 1,366) for
the costs of the expert report assessing the value of their
properties. In their written observations of 15 January 2004, the
first and third applicants claimed additional legal fees for CYP
2,645 (approximately EUR 4,519). In their updated claims for just
satisfaction of 24 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 cost and expenses was thus approximately EUR 11,328.
Finally, on 26 May 2010 the first and third 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 updated valuation reports in view of
the continuing nature of the violations at stake were essential for
enabling 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
the 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 first and third 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
1,200,000 (one million 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
