(Application no. 19900/92)
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 Epiphaniou 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, Ayios Ioannis, plot no. 370, sheet/plan 33/12.3.1, block B; use: residence on 1st floor and shops on ground floor; share: ½ (other ½ in the name of his wife);
(b) Famagusta, Ayios Loukas, plot no. 974, sheet/plan 33/11.E.1, block C; use: building site for investment; share: whole;
(c) Famagusta, Milia, Haragkas, plot no. 214/4/3, sheet/plan 23/14; use: land to be divided into building sites; share: whole.
(a) Famagusta, Ayios Nicolaos, plot no. 200, sheet/plan 33/12.6.2, block E; use: land for development; share: whole;
(b) Famagusta, Kantara-Davlos, plot no. 68.9/1, sheet/plan 7/50.6.1; use: house with yard used as holiday house; share: whole.
Applicant's no. 2 home in Famagusta was registered in the name of a family company established by her father.
Famagusta, Ayias Zonis, plot no. 105, sheet/plan: 33/12.6.IV, block F; use: house with yard; share: ½ (other ½ in the name of his wife).
(a) Famagusta, Ayios Loucas, plot no. 752, sheet/plan 24/59.E.2, Block D; use: building site; share: whole;
(b) Famagusta, Ayios Loucas, plot no. 753, sheet/plan 24/59.E.2, block D; use: building site; share: whole;
(c) Famagusta, Ayios Loucas, plot no. 754, sheet/plan 24/59.E.2, block D; use: building site; share: whole;
(d) Famagusta, Ayios Loucas, plot no. 755, sheet/plan 24/59.E.2, block D; use: building site; share: whole;
(e) Famagusta, Ayios Loucas, plot no. 948, sheet/plan 24/59.E.2, block D; use: land; share: whole;
(f) Famagusta, Spathariko, plot no. 270, sheet/plan 24/2.E.2, block D; use: land; share: ½.
Applicant no. 4's home in Famagusta was registered in his wife's name. He was informed that some of his plots of land were used or permitted to be used by the respondent Government for building part of a university or other structures.
Famagusta, Chrysospiliotissa, plot no. 371, sheet/plan 33/19.3.IV, block D; use: land with two houses, one used by the applicant as his residence and the other one for renting; share: whole.
(a) Famagusta, Latsia, Trikomo, plot no. 137/1/6/2, sheet/plan 15/43; use: land with trees for agriculture; share: 1/6;
(b) Famagusta, Pervolia Trikomou, Kokkines, plot no. 127/2/2, sheet/plan 15/43; use: land for agriculture; share: whole;
(c) Famagusta, Pervolia Trikomou, Kokkines, plot no. 141, sheet/plan 15/43; use: land for agriculture; share: whole.
Applicant no. 6's home in Famagusta was registered in his wife's name.
I. PRELIMINARY ISSUE
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.”
“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 10 (a) above: market value in 1974: CYP 42,000 (approximately EUR 71,761); annual rent in 1974: CYP 2,520 (approximately EUR 4,305); estimated loss plus interest: CYP 226,081 (approximately EUR 386,281);
- property described in paragraph 10 (b) above: market value in 1974: CYP 3,000 (approximately EUR 5,125); annual rent in 1974: CYP 520 (approximately EUR 888); estimated loss plus interest: CYP 22,632 (approximately EUR 38,669);
- property described paragraph 10 (c) above: the rent payable in 1974 calculated on the basis of CYP 5 per decare; rental value in 1974: CYP 5.25 (approximately EUR 9); estimated loss plus interest: CYP 545 (approximately EUR 931).
Thus, the total sum claimed by applicant no. 1 for pecuniary damage was CYP 249,258 (approximately EUR 425,882).
- property described in paragraph 11 (a) above: market value in 1974: CYP 25,500 (approximately EUR 43,569); estimated loss plus interest: CYP 287,255 (approximately EUR 490,803);
- property described in paragraph 11 (b) above: market value in 1974: CYP 15,600 (approximately EUR 26,654); annual rent in 1974: CYP 624 (approximately EUR 1,066); estimated loss plus interest: CYP 55,982 (approximately EUR 95,650).
Thus, the total sum claimed by applicant no. 2 for pecuniary damage was CYP 343,237 (approximately EUR 586,454).
Thus, the total sum claimed by applicant no. 4 for pecuniary damage was CYP 402,676 (approximately EUR 688,012).
(b) The Government
- property described in paragraph 10 (a) above: CYP 42,373 (approximately EUR 72,398);
- property described in paragraph 10 (b) above: CYP 1,695 (approximately EUR 2,896);
- property described in paragraph 10 (c) above: CYP 1,695 (approximately EUR 2,896);
- property described in paragraph 11 (a) above: CYP 7,203 (approximately EUR 12,307);
- property described in paragraph 11 (b) above: CYP 11,864 (approximately EUR 20,270);
- property described in paragraph 12 above: CYP 5,084 (approximately EUR 8,686);
- properties described in paragraph 13 (a), (b), (c) and (d) above: CYP 4,237 (approximately EUR 7,239) for each plot of land;
- property described in paragraph 13 (e) above: CYP 5,932 (approximately EUR 10,135);
- property described in paragraph 13 (f) above: CYP 4,745 (approximately EUR 8,107);
- property described in paragraph 15 (a) above: CYP 2,825 (approximately EUR 4,826);
- property described in paragraph 15 (b) above: CYP 8,983 (approximately EUR 15,348);
- property described in paragraph 15 (c) above: CYP 11,864 (approximately EUR 20,270).
No estimate was given for the property described in paragraph 14 above.
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.
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).