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SAVERIADES v. TURKEY - 16160/90 [2009] ECHR 1317 (22 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1317.html
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[2009] ECHR 1317
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FOURTH
SECTION
CASE OF SAVERIADES v. TURKEY
(Application
no. 16160/90)
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 Saveriades 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. 16160/90) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mr Christos Saveriades
(“the applicant”), on 26 January 1990.
The
applicant was represented by Mr C. Clerides and Mr A. Demetriades,
two lawyers practising in Nicosia. The Turkish Government (“the
Government”) were represented by their Agent,
Mr Z.M. Necatigil.
The
applicant alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived him of his 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
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
The
applicant was born in 1938 and lives in Nicosia.
The
applicant was born in Peristerona, a village in the District of
Famagusta in northern Cyprus. He lived in Famagusta with his family
in a four-bedroom apartment with an unobstructed view towards the
sea, which he claimed that he owned. This apartment, located at no.
128 of the commercial and touristic main street named Kennedy Avenue,
was indicated by no. 703 on a building erected upon a building site
with plot no. 937 of block C and sheet/plan 33/21.2.3. It was
registered in the name of the applicant under registration no. 1057.
9. The
applicant further claimed that at the time of the 1974 Turkish
invasion he was the owner of land in Famagusta on which was located
an Intercommunal Secondary Grammar school, known as the “Centre
of Higher Studies”. This land covered a total area of 6,299 m²,
on plot no. 900 of block D and sheet/plan 24/59W2. It was
registered in the name of the applicant under registration no.
D-4840. On this land the applicant had erected a three-storey
building, which had a total area of 2,020 m², comprising a
basement, ground floor and two vertical floors above it. The
applicant submitted that he was the owner and headmaster of the
above-mentioned school, the premises of which are now part of the
“Eastern Mediterranean University”.
10. In
support of his claims to ownership, the applicant produced the
following documents:
-
an agreement reached on 1 September 1968 between a certain
G. Nicolaides and Mr Takis Saveriades (a member of the
applicant's family) for the sale of an apartment located on the
seventh floor of a flat on the Famagusta coast;
-
a certificate issued on 28 November 2002 by the Department of Lands
and Surveys of the Republic of Cyprus stating that the applicant was
the owner of a flat without parking space, located in Famagusta,
Kennedy Avenue, registered under plot no. 937, sheet/plan 3/21.2.3;
-
a certificate issued on 11 September 2001 by the Department of Lands
and Surveys of the Republic of Cyprus stating that the applicant was
the owner of a field with an unregistered building, located in
Famagusta, Salaminas Avenue, registered under plot no. 900,
sheet/plan 24/59;
- a building permit issued on 11 September 1963 concerning plot
no. 900, sheet/plan 24/59
11. At
the time of the 1974 Turkish invasion, the applicant and his family
fled to southern Cyprus. He claimed that since then he had been
deprived of his property rights, all his property being located in
the area which is under the occupation and the control of the Turkish
military authorities. The latter prevented him from having access to
and from using and possessing his home and property in Famagusta as
well as from practising his profession there.
THE LAW
I. 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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
applicant complained that since July 1974, Turkey had prevented him
from exercising his right to the peaceful enjoyment of his
possessions.
He
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 applicant had not produced any evidence
supporting his claims to ownership. The plot of land within the
campus of the “Eastern Mediterranean University”, which
the applicant alleged belonged to him in 1974, was in fact registered
in the name of the Government of Cyprus. It subsequently devolved to
the Turkish Federated State of Cyprus, and then to the “Turkish
Republic of Northern Cyprus” (the “TRNC”) by virtue
of the mandatory provisions of Article 159 of the Constitution
of the “TRNC”. Consequently, the immovable property in
question belonged to the “TRNC” and had been delivered to
the use of the above-mentioned University.
2. The applicant
The
applicant claimed that the original title deeds were held at his
premises in Famagusta. He had been forced to leave these premises in
great haste and had subsequently been unable to return there or
otherwise retrieve the title deeds. He maintained, however, that the
documents attached to his observations constituted evidence of his
title to the land where the school was located and clearly showed
that that land was not owned by the Government of Cyprus.
The
applicant further relied on the principles laid down by the Court in
the Loizidou v. Turkey judgment ((merits), Reports of
Judgments and Decisions 1996-VI, 18 December 1996) and in the
Cyprus v. Turkey case ([GC], no. 25781/94, ECHR
2001–IV).
B. The Court's assessment
The
Court first notes that the documents submitted by the applicant (see
paragraph 10 above) provide prima facie evidence that he had a
title of ownership over the properties at issue. As the respondent
Government failed to produce convincing evidence in rebuttal, and
taking into account the circumstances in which the applicant had been
compelled to leave northern Cyprus, the Court considers that he had a
“possession” within the meaning of Article 1 of Protocol
No. 1.
The
Court recalls that in the aforementioned Loizidou case
((merits), cited above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact
that the applicant has been refused access to the land since 1974,
she has effectively lost all control over, as well as all
possibilities to use and enjoy, her property. The continuous denial
of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference
cannot, in the exceptional circumstances of the present case to which
the applicant and the Cypriot Government have referred, be regarded
as either a deprivation of property or a control of use within the
meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first
sentence of that provision as an interference with the peaceful
enjoyment of possessions. In this respect the Court observes that
hindrance can amount to a violation of the Convention just like a
legal impediment.
64. Apart from a passing reference to the
doctrine of necessity as a justification for the acts of the 'TRNC'
and to the fact that property rights were the subject of
intercommunal talks, the Turkish Government have not sought to make
submissions justifying the above interference with the applicant's
property rights which is imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
In
the case of Cyprus v. Turkey (cited above) the Court
confirmed the above conclusions (§§ 187 and 189):
“187. The Court is persuaded that both
its reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation
of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus are being denied
access to and control, use and enjoyment of their property as well as
any compensation for the interference with their property rights.”
The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus v.
Turkey cases (op. cit.; see also Demades 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 applicant was
denied access to and control, use and enjoyment of his properties as
well as any compensation for the interference with his property
rights.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicant submitted that in
1974 he had had his home in Famagusta. As he had been unable to
return there, he was the victim 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.”
The
Government disputed this claim.
The
applicant submitted that, contrary to the applicant in the Loizidou
case, he had been the owner of an apartment in Famagusta and that
until 1974 he and his family had been using these premises as their
home.
The
Court notes that the Government failed to produce any evidence
capable of casting doubt upon the applicant's statement that, at the
time of the Turkish invasion, he was regularly residing in Famagusta
and that this apartment was treated by the applicant and his family
as a home.
Accordingly,
the Court considers that in the circumstances of the present case,
the apartment of the applicant qualified as “home” within
the meaning of Article 8 of the Convention at the time when the acts
complained of took place.
The
Court observes that the present case differs from the Loizidou
case ((merits), cited above) since, unlike Mrs Loizidou, the
applicant actually had a home in Famagusta.
The
Court notes that since 1974 the applicant has been unable to gain
access to and to use that 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 on account of the complete denial of the
applicant's right to respect for his home.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION AND
OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The
applicant complained of a violation of the general obligation to
respect human rights enshrined in Article 1 of the Convention.
He also complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against him in the
enjoyment of his rights under Article 8 of the Convention and Article
1 of Protocol No. 1. He alleged that this discrimination had been
based on his national origin and religious beliefs.
The relevant provisions read as follows:
Article 1 of the Convention
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government disputed these claims.
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). Moreover, the Court has found the
respondent Government to be in breach of Article 1 of Protocol No. 1
and of Article 8 of the Convention and does not consider it necessary
to examine the complaint under Article 1, which is a framework
provision that cannot be breached on its own (see Ireland v. the
United Kingdom, § 238, 18 January 1978, Series A no.
25, and Eugenia Michaelidou Ltd and Michael Tymvios, cited
above, § 42).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
In
his just satisfaction claims of 3 December 2002, the applicant
requested 3,960,739 Cypriot pounds (CYP –
approximately 6,767,318 euros (EUR)) for pecuniary damage. He relied
on an expert's report assessing the value of his loss which included
the loss of annual rents collected or expected to be collected from
the use of his school and from renting out his apartment, plus
interest from the date on which such rents were due until the day of
payment. The rents claimed were for the period dating back to January
1987, when the respondent Government accepted the right of individual
petition, until 31 December 2002. The applicant did not claim
compensation for any purported expropriation since he was still the
legal owner of the properties. He underlined that his family bought
the apartment in Kennedy Avenue from a certain Georghios Michael
Nicolaides in 1968 for CYP 6,300 (approximately EUR 10,764), as
evidenced by the relevant sale agreement. Calculating a 12% annual
increase, in 1987 this property was worth CYP 54,206 (approximately
EUR 92,616) and an annual rent of CYP 3,527 (approximately EUR
6,026) could have been obtained from it. The total rent expected to
be collected in the period 1987-2002 was CYP 70,779
(approximately EUR 120,932).
As
far as the applicant's school was concerned, the valuation report
took into account the following damages:
(a) the
trade disturbance for not being allowed to conduct the established
course of business and for being forced to relocate and restart the
business in Nicosia in 1992 (amounting to CYP 2,155,519); in this
respect, the expert noted that the profits which could have been
expected from running the school were CYP 118,818 (approximately EUR
203,012) in 1987 and CYP 170,732 (approximately EUR 291,712) in
1992, while the profits obtained by the applicant from the business
he restarted in Nicosia were, in 1992, only CYP 102,236
(approximately EUR 174,680);
(b)
the rents expected to be collected from renting or leasing the school
until 1991 (the annual rent in 1987 being estimated at CYP 23,054 –
approximately EUR 39,390);
(c)
the rent paid by the applicant from 1992 onwards for occupying the
premises in Nicosia where he had restarted his business (amounting to
CYP 220,757);
(d)
the statutory interest on the above sums.
The
calculations made in the valuation report were based on the Consumer
Price and Rent and Housing Indices for the years 1960-2002 (issued by
the Department of Statistics and Research of the Government of
Cyprus), on the financial picture of Famagusta, on the expected
growth of the applicant's business, on the location of the premises
and on their expected increase in value.
The
expert presumed that the price of the applicant's apartment would
have risen constantly by 12 % each year for the period from 1968
to 1987. He then aggregated the rents that could have been
collected from 22 January 1987 until 31 December 2002,
calculated as 6.25% of the estimated market value of the property for
each of the years in question, plus interest from the date on which
such rent was due until the date of payment.
On
25 January 2008, following a request from the Court for an update on
developments of the case, the applicant submitted updated claims for
just satisfaction, which were meant to cover the loss of use of the
properties from 1 January 1987 to 31 December 2007. He 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 4,272,291, plus CYP 1,909,355 for interest. The
total sum claimed under this head was thus CYP 6,181,646
(approximately EUR 10,561,960).
In
his just satisfaction claims of 3 December 2002, the applicant
further claimed CYP 228,000 (approximately EUR 389,560) in
respect of non-pecuniary damage. In particular, he first claimed CYP
38,000 (approximately EUR 64,926) for the anguish and
frustration he suffered on account of the continuing violation of his
property rights. He stated that this sum had been calculated on the
basis of the sum awarded by the Court in the Loizidou case
((just satisfaction), Reports 1998-IV, 28 July 1998),
taking into account, however, that the period of time for which the
damage was claimed in the instant case was longer. The applicant also
claimed CYP 114,000 (approximately EUR 194,780) for the
distress and suffering he had been subjected to due to the denial of
his right to respect for his home and CYP 76,000 (approximately
EUR 129,853) for the violation of his rights under Article 14 of
the Convention.
Finally,
in his updated claims for just satisfaction of 25 January 2008, the
applicant requested the additional sum of EUR 50,000 for
non-pecuniary damage.
(b) The Government
In
reply to the applicant's just satisfaction claims of 3 December 2002,
the Government submitted that Turkey had no access to lands records
in the “TRNC” and could not therefore have sufficient
knowledge about the applicant's alleged immovable properties' value.
In any event, according to the information given by the “TRNC”
authorities, the apartment in Kennedy Avenue was not registered in
the name of the applicant, but in the name of a certain Georghios
Michael Nicolaides. Moreover, as the land on which the block of flats
was constructed belonged to a Turkish religious trust known as Vakif,
it could not have been alienated under the laws of Cyprus. It
followed that the purported transfer of property in favour of the
applicant was null and void.
The
properties left by the applicant had been considered abandoned and
had been expropriated under the laws of the “TRNC”. It
was impossible for Turkey to adopt any domestic provision regarding
the expropriations made by another independent State. It should also
be taken into account that during the last decades the landscape in
northern Cyprus had considerably changed and that these changes had
affected the applicant's 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, acting as a first-instance tribunal and relying on the
reports produced by the applicant side only.
Challenging
the conclusions reached by the Court in the Loizidou case
((just satisfaction), cited above), 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
applicant's inability to have access to his properties depended on
the political situation of the island and, in particular, on the
existence of the UN recognised cease-fire lines. If Greek Cypriots
were allowed to go to the north and claim their properties, chaos
would explode on the island; furthermore, any award made by the Court
would undermine the negotiations between the two parties.
46. The
Government filed comments on the applicant's 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. 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. Moreover, 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 proved that their co-owners had agreed to the
partition of the possessions. Nor, when claiming damages based on the
assumption that the properties had been rented after 1974, had the
applicants shown that the rights of the said co-owners under domestic
law had been respected.
The
Government also 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 applicant 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 applicant 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 the
properties claimed by the applicant, currently possessed by refugees
and by the Ministry of Education, 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 applicant applied to
the Immovable Property Commission, the latter would have offered CYP
287,279.03 (approximately EUR 490,844) to compensate the loss of use
and CYP 305,991.12 (approximately EUR 522,816) for the value of the
properties. According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of apartment claimed by the
applicant was CYP 5,000 (approximately EUR 8,543), while the
properties described in paragraph 9 above were worth CYP 45,000
(approximately EUR 76,887). Upon fulfilment of certain conditions,
the Immovable Property Commission could also have offered the
applicant exchange of his properties with Turkish-Cypriot properties
located in the south of the island.
Finally,
the Government did not comment on the applicant's submissions under
the head of non-pecuniary damage.
2. The Court's assessment
The
Court first notes that the Government's submission that doubts might
arise as to the applicant's title of ownership over the properties at
issue (see paragraphs 43 and 46 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
applicant had a “possession” over the apartment, land and
building in Famagusta within the meaning of Article 1 of Protocol No.
1 (see paragraph 18 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 applicant of the 1974 market value of his 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 applicant
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
In
his just satisfaction claims of 3 December 2002, relying on bills
from his representatives, the applicant sought CYP 5,932.14
(approximately EUR 10,135) plus V.A.T. (to be calculated at a rate of
15%) for the costs and expenses incurred before the Court. This sum
included CYP 3,250 (approximately EUR 5,552) for the costs of the
expert report assessing the value of his properties. On 14 July 2003,
the applicant submitted additional bills of costs from his lawyers,
amounting to a total of CYP 10,350 (approximately EUR
17,684) plus V.A.T. On 15 January 2004, he claimed additional
expenses amounting to CYP 2,645 (approximately EUR 4,519). Finally,
in his updated claims for just satisfaction of 25 January 2008,
the applicant submitted additional estimated bills of costs amounting
to EUR 39,297.83 and EUR 2,955.5.
The
Government did not comment on this point.
In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant.
FOR THESE REASONS, THE COURT
Dismisses by six votes to one the Government's
preliminary objections;
Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
Holds 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 1 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 applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written observations on
the matter and, in particular, to notify the Court of any agreement
that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 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.
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).
