(Application no. 21887/93)
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 Josephides v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
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:
(a) Nicosia/Piroi, plot no. 124, sheet/plan 31/26, registration no. 4475, share: ½, area: 25,753 square metres (m²);
(b) Larnaca/Athienou, plot no. 607, sheet/plan 31/46, registration no. 31803, share: whole; area: 2,342 m²;
(c) Larnaca/Athienou, plot no. 670, sheet/plan 31/46, registration no. 23140, share: whole; area: 1,673 m²;
(d) Larnaca/Athienou, plot no. 671, sheet/plan 31/46, registration no. 25893, share: whole; area: 1,673 m²;
(e) Larnaca/Athienou, plot no. 635, sheet/plan 31/46, registration no. 23158, share: whole; area: 2,676 m²;
(f) Larnaca/Athienou, plot no. 291, sheet/plan 31/54, registration no. 25885, share: whole; area: 11,706 m²;
(g) Larnaca/Athienou, plot no. 339, sheet/plan 31/43, registration no. 25887, share: whole; area: 6,680 m²;
(h) Larnaca/Athienou, plot no. 338, sheet/plan 31/43, registration no. 23126, share: whole; area: 6,666 m²;
(i) Larnaca/Athienou, plot no. 82, sheet/plan 31/43, registration no. 29092, share: whole; area: 5,017 m²;
(j) Larnaca/Athienou, plot no. 122, sheet/plan 31/36, registration no. 23392, share: 1/2; area: 12,041 m²;
(k) Larnaca/Arsos, plot no. 59, sheet/plan 32/25, registration no. 842, share: 1/2; area: 22,409 m².
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
He invoked Article 1 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.”
A. The arguments of the parties
1. The Government
2. The applicant
B. The third-party intervener
C. The Court's assessment
“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.”
“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.”
III. ALLEGED VIOLATION OF ARTICLES 1 AND 18 OF THE CONVENTION AND OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
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 restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
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.”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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
(b) The Government
- plot of land described in paragraph 8 (b) above: CYP 80 (approximately EUR 136);
- plot of land described in paragraph 8 (c) above: CYP 50 (approximately EUR 85);
- plot of land described in paragraph 8 (d) above: CYP 50 (approximately EUR 85);
- plot of land described in paragraph 8 (e) above: CYP 80 (approximately EUR 136);
- plot of land described in paragraph 8 (f) above: CYP 350 (approximately EUR 598);
- plot of land described in paragraph 8 (g) above: CYP 200 (approximately EUR 341);
- plot of land described in paragraph 8 (h) above: CYP 200 (approximately EUR 341);
- plot of land described in paragraph 8 (j) above: CYP 180 (approximately EUR 307).
No estimate was given for the plots described in paragraph 8 (a), (i) and (k) above.
45. Finally, the Government did not comment on the applicant's submissions under the head of non-pecuniary damage.
2. The third party intervener
3. The Court's assessment
B. Costs and expenses
FOR THESE REASONS, THE COURT
(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.
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 a violation of Article 1 of Protocol No. 1 of the Convention, for the same reasons as those mentioned in my dissenting opinion in the case of Alexandrou v. Turkey (no. 16162/90, 20 January 2009).