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OUZOUNIAN BARRET v. CYPRUS - 2418/05 [2007] ECHR 63 (18 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/63.html
Cite as:
[2007] ECHR 63
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FIRST
SECTION
CASE OF OUZOUNIAN BARRET v. CYPRUS
(Application
no. 2418/05)
JUDGMENT
STRASBOURG
18
January 2007
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 Ouzounian Barret v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 2418/05) against the
Republic of Cyprus lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Cypriot national, Ms Alice
Ouzounian Barret (“the applicant”), on 7 January 2005.
The
applicant was represented by Mr C. Clerides, a lawyer practising in
Nicosia. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
On
16 January 2006 the
Court decided to communicate the complaints concerning the length of
the proceedings complaints and the lack of remedies in that respect
to the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant lives in Nicosia.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
The
applicant is the registered owner of immovable property adjacent to a
salt lake in the district of Larnaca. In 1981 the applicant's
property was included in a planning zone (Z4) with a building
density coefficient applicable for development purposes of only 1 per
cent. Subsequently, on 1 December 1990, on the basis of the Law
on Town Planning and Residential Land Use and the Larnaca Town
Planning Scheme, the property was included in a different zone (Δα2)
with a higher building density coefficient of 5 per cent and was
classified as a town park.
A. Proceedings concerning the planning permit
On
16 October 1991 the applicant applied to the District Planning Office
of Larnaca for a planning permit for the construction of a house that
would cover 17 per cent of the relevant plot.
On
25 November 1991 the District Planning Office rejected her
application on the grounds that the coefficient of the proposed
construction was higher than that permitted by the Larnaca Town
Planning Scheme.
On
6 December 1991 the applicant lodged a hierarchical recourse with the
Ministry of Interior. The applicant was informed by letter dated
29 March 1993 that the Ministerial Council had dismissed her
recourse on 18 February 1993 for the same reasons.
B. Proceedings concerning compensation
1. Proceedings before the Ministry of Interior
On
28 June 1993 the applicant filed a claim for compensation before the
Ministry of the Interior. The applicant claimed damages for the
diminution in the value of her property due to the authorities'
refusal to grant her a planning permit. Her claim was dismissed by
the Ministry on 31 October 1996. In its decision the Ministry
noted that, on the basis of the examination of an evaluation of the
property prepared by the District Land Office and her application, it
found that that there had not been any diminution in the property's
value because of the authorities' refusal to grant her a planning
permit and consequently, by the application of the Law on Town
Planning and the Larnaca Town Planning Scheme. Finally, it noted that
the property had been included in a planning zone with a higher
coefficient.
2. Proceedings before the District Court of Larnaca
On
3 January 1997 the applicant filed a civil action (no. 55/97)
with the District Court of Larnaca against the Attorney-General of
the Republic and the Ministry of Interior. The applicant claimed the
amount of 24,330 Cypriot pounds (CYP) as damages in respect
of the diminution in the value of her property which was caused by
the application of the Law on Town Planning and Land Use and/or the
Larnaca Town Planning Scheme and/or due to the restrictions imposed.
She invoked Article 23 of the Constitution in respect to the latter.
On
3 January 1997 the applicant also filed her statement of claim.
Following the defendants' failure to file their defence within the
set fourteen day time-limit, the Registrar sent a notice to the
defendants on 16 September 1999 informing them that upon failure
to file their defence within fourteen days after the giving of the
notice, a decision could be issued in the applicant's favour. By
letter dated 5 October 1999 the defendants requested an extension of
twenty days. This was granted by the court. On 20 April 1999 the
defendants filed an ex parte application requesting an
additional extension. The application was set for hearing for 10 May
2000. On that date the court granted the application giving the
defendants until 28 June 2000 to file their defence. This was filed
on 26 June 2000.
On
24 July 2000 the applicant requested the court to fix the case for
hearing. On 11 August 2000 the court set the case for instructions
for 27 September 2000 and on the latter date it fixed the case
for hearing for 1 February 2001.
On
1 February 2001 the case was adjourned until 14 May 2001 at the
defendants' request. The applicant consented to the adjournment and
the court noted that it also had another case to deal with that day.
The case was then adjourned twice until 5 November 2001 at the
applicant's request in view of the fact that her lawyer was unable to
attend: one was requested on 14 May 2001 and the court adjourned the
case until 9 October 2001 and one was requested on 8 October 2001 and
the court adjourned the case until 5 November 2001. On the
latter date the hearing of the case commenced.
The
hearing was fixed for 10 December 2001 and then was adjourned at the
applicant's request until 14 January 2002 since her lawyer was unable
to attend due to hearings he had in other cases. The court was
reluctant in granting the request in view of the fact that the case
had been pending before it for a while. It noted that the hearing had
been fixed to take place more than a month before and that the
applicant's lawyer should have informed the court at the time that he
had other hearings or he should not have taken on other hearings on
the same date giving priority to the present case which had been
pending for a longer time before the courts.
On
14 January 2002 the case was adjourned until 18 February 2002 at the
parties' request. The hearing continued on the latter date and was
concluded on 21 June 2002. Within this period four adjournments took
place; two at the defendants' request, one at the applicant's request
and one at the parties' request.
The
only oral evidence heard at the trial was that of the applicant's
valuation expert. This expert gave evidence as to his assessments of
the diminution in the property's value due to the limitations imposed
and of the compensation that should be granted. Using the comparative
method of analysis, the expert concluded that if the property had
been granted the same building density coefficient applicable to
neighbouring plots, its value would have been CYP 29,224. However,
the actual market value of the plot was CYP 4,895 due to the lower
coefficient. Consequently, the property's value had diminished by CYP
24,329.
The
defendant authorities contested the applicant's argument that the
value of the plot had been diminished and the manner in which the
applicant's expert had carried out his assessment.
On
13 December 2002 the District Court of Larnaca delivered its
judgment. The court pointed out that the requested planning permit
had been refused because the proposed construction would cover 17 per
cent of the relevant plot. This exceeded the building density
coefficient applicable for development purposes. The applicant had
not proved that it was this refusal that caused diminution in the
property's value. She had not put forward any evidence establishing
that the planning authorities had acted outside the scope of the
provisions of the Town Planning Scheme or applied this scheme
disproportionately so as to cause her damage by refusing her
application. Furthermore, the applicant had not challenged the Town
Planning Scheme. The court considered that any reduction in the
property's value had been due to its inclusion in 1981 in Zone Z4.
However, it was an established fact that the applicant had not
challenged this. Moreover, the property was subsequently included in
a zone with a higher coefficient allowing for better chances of
development from what was previously envisaged. Therefore, the value
of the property had not been reduced due to the change in the
applicable zones.
In
addition, the court considered that applicant's expert's valuation
was not safe. In this connection it noted that it did not provide an
estimate of the property's value before its inclusion in the planning
zone where it was at the relevant time or determined the value of the
property on the market at the relevant time and that comparisons were
made with plots in different zones with higher building density
coefficients.
Finally,
the court observed that the defendants had not pursued their claim
that the property had been affected by expropriation; during the
hearing it had been admitted that no part of the property had been
registered in the Government's name due to expropriation.
3. Proceedings before the Supreme Court
On
20 January 2003 the applicant lodged an appeal (no. 11571)
with the Supreme Court challenging the findings of the first instance
court. The applicant claimed, inter alia, that the failure of
the authorities to award her compensation was contrary to Article 23
of the Constitution and Article 1 of Protocol No. 1 to the
Convention.
The
appeal was heard on 25 June 2004.
On
20 December 2004 the Supreme Court delivered its judgment upholding
the findings of the District Court of Larnaca. The court found that
it had not been established that a possible reduction was the
consequence of the rejection of the applicant's application for a
planning permit. If any reduction had occurred to the property's
value this would have been due to its prior inclusion in Zone Z4 in
1981 and thus, before the application of the Town Planning Scheme of
1990 on which the District Planning Office had based its decision to
dismiss the application. However, the applicant had never contested
the inclusion of the property in the above zone
on the basis of Article 23 of the Constitution guaranteeing the right
to property. Furthermore, the court noted that the applicant had not
contested the lawfulness of the decision to establish zones before it
nor before the first instance court. It also observed that it was an
established fact that the neighbouring properties which were located
opposite the applicant's property towards the beach, belonged to a
different planning zone, with much higher building density
coefficients ranging from 20 to 30 per cent. Finally, the court
considered that it was unnecessary to examine the ground of appeal
concerning the calculations of the applicant's expert, in view of its
findings that there had not been a reduction in the value of the
property.
II. RELEVANT DOMESTIC LAW
25. Article
23 of the Cyprus Constitution, in so far as relevant, provides as
follows:
“(1) Every person, alone or jointly
with others, has the right to acquire, own, possess, enjoy or dispose
of any movable or immovable property and has the right to respect for
such a right. The right of the Republic to underground water,
minerals and antiquities is reserved.
(2) No deprivation or restriction or
limitation of any such right shall be made except as provided in
this Article.
(3) Restrictions or limitations which
are absolutely necessary in the interests of public safety or
public health or public morals, or town and country planning or
the development and use of any property for the promotion of the
public benefit or for the protection of the rights of others, may be
imposed by law on the exercise of such a right.
Just compensation shall be promptly paid for any such
restrictions or limitations which materially decrease the economic
value of the property; in case of disagreement, such compensation is
to be determined by a civil court”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
applicant considered that all the proceedings amounted to one set of
proceedings and, thus, that they should all be taken into account
when assessing the length of the proceedings.
The
Government considered that the proceedings started on 6 December
1991 when the applicant lodged a hierarchical recourse with the
Council of Ministers.
The
Court notes that there are in fact two sets of proceedings at issue
in the present case. The first set of proceedings took place before
the District Planning Office and the Ministry of the Interior which
examined her application for a planning permit. The second set of
proceedings concerned the applicant's application for compensation in
respect of loss suffered due to the refusal of her application for a
planning permit.
Although
both sets of proceedings concerned the applicant's property they
constituted distinct proceedings with a different cause of action and
were examined separately by the authorities. Accordingly, the Court
cannot accept the applicant's argument in this respect and will
proceed to examine each set of proceedings individually.
1. Proceedings concerning the
planning permit
The
Court observes that these proceedings began on 16 October 1991 with
the filing of the application for a planning permit and ended on 18
February 1993 with its dismissal by the Ministry of Interior (see
paragraph 9 above).
It
follows that this part of the application is inadmissible for
non-compliance with the six months' rule set out in Article 35 §
1 of the Convention, and that it must be rejected pursuant to Article
35 § 4.
2. Proceedings concerning
compensation
33. The
Court considers that the period to be taken into consideration began
on 3 January 1997 when the applicant lodged a
civil action (no. 55/97) before the District Court
of Larnaca challenging the decision of the Ministry of the Interior
refusing her claim for compensation, as it was only then that a
“dispute” within the meaning of Article 6 § 1
arose, (see mutatis mutandis, König v. Germany,
judgment of 28 June 1978, Series A no. 27, § 98, Morscher
v. Austria, no. 54039/00, § 38, 5 February 2004 and
Nowicky v. Austria, no. 34983/02, § 47, 24
February 2005). It ended on 20 December 2004 when the Supreme
Court delivered its judgment dismissing her appeal. It thus lasted
seven years, eleven months and eighteen days for two levels of court
jurisdiction.
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
applicant complained about the protracted length of the proceedings.
In this respect, she argued, inter alia, that the Cypriot
judicial system suffered from certain weaknesses that prevented it
from dealing with cases within reasonable time. In particular, the
applicant pointed out that the domestic courts had limited working
hours, were unable to try cases on a day-to-day basis, granted
extensive adjournments and allowed excessive time to parties to
comply with interim steps such as the filing of pleadings. She
further noted that there were not enough judges to deal with the
increasing case load.
The
Government maintained that the case had been complicated and that the
applicant had contributed to the duration of the proceedings.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
As
regards the first instance proceedings, the Court notes that although
the case was pending before the Larnaca District Court for just under
six years, the applicant contributed considerably to the prolongation
of the proceedings. In particular, the Court observes that several
adjournments were granted at her lawyer's request and at the request
of both parties (see paragraphs 14-16 above).
Furthermore,
the Court notes that it took the defendants over three years and five
months to file their defence (see paragraph 12 above). In this
connection, the Court notes that the plaintiff did not at any time
apply for a judgment against the defendants in default of pleading.
However, it considers that the District Court was responsible to a
great extent for this delay. It took the Registrar of that court
approximately two years and four months to send a notice to the
defendants concerning their failure to file their defence (ibid).
Following this the court granted both adjournments requested by the
defendants (ibid). As a consequence there was a significant
period of inactivity in the proceedings.
In
respect of the appeal proceedings, the Court observes that although
the appeal was lodged on 20 January
2003, the case was heard approximately one year and five months
afterwards, on 25 June 2004 (see paragraphs 22-23 above). This delay
has not been explained by the Government. The
above period presents a substantial delay, bearing in mind the
overall length of the appeal proceedings of one year and eleven
months, including the time it took the Supreme Court to prepare and
deliver its judgment (see paragraph 24 above).
In
conclusion, having taken into account the circumstances of the case
and the overall duration of the proceedings, the Court finds, that in
the instant case the length of the proceedings before the domestic
courts was excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN
RESPECT OF THE LENGTH OF THE PROCEEDINGS
The
applicant complained of a lack of an effective remedy within the
meaning of Article 13 of the Convention in respect of the excessive
length of the proceedings. 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.”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions before the Court
The
Government submitted that effective remedies were available to the
applicant at the domestic level concerning her claim under Article 6
§ 1 of the Convention. They noted that there was an established
remedy resorted to by many litigants. They did not provide further
details in this respect.
The
applicant contested the Government's arguments. She submitted that no
effective remedy existed in relation to her complaint. In this
connection, she referred to the Court's judgment in the case of
Tsaggaris v. Cyprus (no. 21322/02, 19 January 2006)
in which the Court rejected the Government's submissions that an
effective domestic remedy was available for length complaints.
2. The Court's assessment
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
In
the present case, the Court notes that the Government have only made
very general statements concerning the availability of remedies in
respect of the applicant's complaint, without specifying what these
remedies actually are. They have not referred to any legal provisions
or cited any examples of established case-law on the availability of
relief -either preventive or compensatory– for the delays that
occurred in the proceedings and their consequences (Kudła v.
Poland [GC], no. 30210/96, § 159, ECHR 2000-XI).
In
these circumstances, the Court considers that the Government have
failed to show that an effective domestic remedy was available to the
applicants in respect of the length of the domestic proceedings.
There
has accordingly been a breach of Article 13 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained that the extensive restrictions imposed on her
property were tantamount to unlawful de facto expropriation of
her property and/or disproportionate control of its use without
compensation, contrary to Article 1 of Protocol No. 1. She further
complained of a violation of Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 since the restrictions
imposed on her property were not imposed on neighbouring properties
which, in contrast to her property, had a building density
coefficient of 30 per cent and could be used for residential
purposes. Finally, she claimed that there was no effective remedy as
required by Article 13 of the Convention in respect of her
aforementioned complaints.
Admissibility
As
regards the applicant's complaint under Article 1 of Protocol No. 1
taken alone and in conjunction with Article 14, the Court notes that
in so far as the complaint concerns the refusal of the authorities to
grant her a planning permit, the applicant did not challenge the
decision of the Ministry of the Interior by way of administrative
recourse to the Supreme Court. Consequently, this complaint must be
rejected under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
To
the extent that the applicant is complaining about the lack of
compensation for the diminution in the value of her property as a
result of the refusal of the planning permit application, the Court
notes that the domestic courts found that such a diminution had not
been established. On the contrary they held that if any diminution
had occurred at any time that would have been when the property had
been included in zone Z4 in 1981. However, the applicant failed to
challenge the inclusion of the property in that planning zone by way
of an administrative recourse at the relevant time invoking
Article 23 of the Constitution or before the courts in the
proceedings currently under examination. She also failed
to challenge the subsequent inclusion of the property in zone
Δα2 in 1990
and the lawfulness of the Town Planning Scheme in this respect.
Furthermore, the domestic courts pointed out that the plot's
subsequent inclusion in the latter zone on the basis of the Town
Planning Scheme had actually improved its development prospects since
this zone was characterised by a higher building density coefficient.
Having
regard to the above, the Court considers this part of the application
does not disclose any appearance of a violation of the Convention and
must be rejected as being manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.
Finally,
the Court notes that Article 13 applies only where an individual
has an “arguable claim” to be the victim of a violation
of a Convention right (Boyle and Rice v. the United Kingdom,
judgment of 27 April 1988, Series A no. 131, p.23 § 52;
Voyager Limited v. Turkey (dec.), no. 35045/97, 4 September
2001, and Ivison v. the United Kingdom (dec.), no. 39030/97,
16 April 2002). The Court has found above that the applicant's
complaints under Articles 14 of the Convention and 1 of Protocol No.
1 are manifestly ill-founded. For similar reasons, the applicant does
not have an “arguable claim” for the purposes of
Article 13 of the Convention, and the latter provision is
therefore inapplicable in the present case (see, Ellersiek v.
Germany (dec.), no. 77151/01, 23 June 2005).
Accordingly,
this complaint is also manifestly ill-founded within the meaning of
Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed restitution of her rights under Article 1 of
Protocol No. 1 to the Convention. She claimed the amount of CYP
24,330 plus interest in respect of pecuniary damage. This sum
represented the diminution in the value of the applicant's property.
She further claimed CYP 25,000 plus interest as non-pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 4,000 under that head, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant also claimed CYP 10,000 plus interest for the costs and
expenses incurred before the domestic courts, which included legal
fees, fees for valuation and costs that had been granted against her.
She further claimed CYP 5,750 for those incurred before the Court. In
her observations, the applicant included an itemised breakdown of the
work involved and further, submitted two receipts for the total
amount of CYP 550 and a letter from her lawyer requesting her to
pay the sum of CYP 5,200.
The
Government contested these claims.
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 Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI). In the present case, regard being had to the
information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,500 for the
proceedings before the Court.
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
Declares the complaints under Articles 6 §
1 and 13 of the Convention concerning the length of the proceedings
and the lack of remedy in this respect admissible and the remainder
of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four thousand
euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand
five hundred euros) for costs and expenses, to
be converted into Cyprus pounds at the rate applicable at the date of
settlement, plus any tax that may be chargeable on the above amounts;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
