(Application no. 16654/90)
22 September 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Zavou and Others v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
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) Famagusta, Chrysospyliotissa, plot no. 513, sheet/plan 33/12.4.2, block A, registration no. AO-16/10/86; description: house; use: residence, share: whole;
(b) Famagusta, Ayios Ioannis, plot no. 320, sheet/plan 33/12.2.3, block A, registration no. AO-16/10/86; description: block of flats; use: commercial-rent; share: 1/5;
(c) Famagusta, Ayios Loucas, plot no. 827, sheet/plan 33/11.W.1, block B and plot no. 51, sheet/plan 33/11.W.1, block B, registration no. BO-16/10/86; description: orange grove; share: 3/8.
Famagusta, Chrysospyliotissa, plot no. 1178, sheet/plan 33/12.6.3, block A; description: two houses; share: ½.
(a) Famagusta, Chrisi Akti, plot no. 691, sheet/plan 33/21.1.IV, block A; description: house; use: residence; share: whole;
(b) Famagusta, Chrisi Akti, plot no. 693, sheet/plan 33/21.1.IV, block A; description: house; use: rent; share: whole;
(c) Famagusta, Salamis, plot no. 1885, sheet/plan 33/3.E.1, block D; description: building site.
Famagusta, Stavros, plot no. 701, sheet/plan 33/13.4.3, registration no. SDD 626/85; description: plot of Land with two houses; use: residence; share: whole.
(a) Famagusta, Ayios Ioannis, plot no. 264, sheet/plan 33/12.3.4, block C; description: house; use: residence; share: whole;
(b) Famagusta, Komi Kepir, plots nos. 532 and 543, sheet/plan 7/46; description: plots of land; use: agriculture; share: whole.
I. WITHDRAWAL OF THE APPLICATION
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
They invoked Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The arguments of the parties
1. The Government
2. The applicants
B. 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.”
IV. ALLEGED 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.”
“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.”
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
VI. 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.”
VII. 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 applicants
- property described in paragraph 11 (a) above: market value in 1974: CYP 14,400 (approximately EUR 24,603); annual rent in 1974: CYP 576 (approximately EUR 984); estimated loss plus interest: CYP 51,676 (approximately EUR 88,293);
- property described in paragraph 11 (b) above: market value in 1974: CYP 95,000 (approximately EUR 162,317); annual rent in 1974: CYP 4,750 (CYP 950 – approximately EUR 1,623 – for the 1/5 share belonging to the applicant); estimated loss plus interest: CYP 85,229 (approximately EUR 145,622);
- property described in paragraph 11 (c) above: rent payable in 1974 calculated on the basis of CYP 35 per decare; rental value of the whole property in 1974: CYP 728 (CYP 273 – approximately EUR 466 – for the 3/8 shares belonging to the applicant); estimated loss plus interest: CYP 18,633 (approximately EUR 31,836).
Thus, the total sum claimed by applicant no. 1 for pecuniary damage was CYP 155,538 (approximately EUR 265,752).
- properties described in paragraph 13 (a) and (b) above: market value in 1974: CYP 25,700 and CYP 13,500 respectively; 1974 total annual rent for both properties: CYP 1,568 (approximately EUR 2,679); estimated loss plus interest: CYP 140,672 (approximately EUR 240,352);
- property described in paragraph 13 (c) above: market value in 1974: CYP 3,000 (approximately EUR 5,125); estimated loss plus interest: CYP 22,632 (approximately EUR 38,669).
Thus, the total sum claimed by applicant no. 15 for pecuniary damage was CYP 163,304 (approximately EUR 279,021).
- property described in paragraph 15 (a) above: market value in 1974: CYP 40,000 (approximately EUR 68,344); annual rent in 1974: CYP 2,000 (approximately EUR 3,417); estimated loss plus interest: CYP 179,429 (approximately EUR 306,572);
- property described in paragraph 15 (b) above: rent payable in 1974 calculated on the basis of CYP 25 per decare; rental value in 1974: CYP 367.37 (approximately EUR 627); estimated loss plus interest: CYP 25,071 (approximately EUR 42,836).
Thus, the total sum claimed by applicant no. 37 for pecuniary damage was CYP 204,500 (approximately EUR 349,408).
(b) The Government
- property described in paragraph 11 (a) above: CYP 16,000 (approximately EUR 27,337);
- property described in paragraph 11 (b) above: CYP 1,000 (approximately EUR 1,708);
- property described in paragraph 11 (c) above: CYP 1,450 (approximately EUR 2,477);
- property described in paragraph 12 above: CYP 10,000 (approximately EUR 17,086);
- property described in paragraph 13 (a) above: CYP 35,000 (approximately EUR 59,801);
- property described in paragraph 13 (b) above: CYP 20,000 (approximately EUR 34,172);
- property described in paragraph 13 (c) above: CYP 4,000 (approximately EUR 6,834);
- property described in paragraph 14 above: CYP 30,000 (approximately EUR 51,258);
- property described in paragraph 15 (a) above: CYP 30,000 (approximately EUR 51,258);
- property described in paragraph 15 (b) above: CYP 670 (approximately EUR 1,144).
2. 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 applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 22 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Karakaş is annexed to this judgment.
ANNEX – LIST OF APPLICANTS
The applicants of the present application, all permanent residents of Famagusta until July 1974 and since then residents of Limassol, are as follows:
29. Yiannoula IOANNIDOU, born in 1935 in Kakopetria.
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).