FOURTH SECTION

CASE OF HAPESHIS AND HAPESHI-MICHAELIDOU v. TURKEY

(Application no. 35214/97)

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 Hapeshis and Hapeshi-Michaelidou 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 AracıSection Registrar,
Having deliberated in private on 1 September 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 35214/97) 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 two Cypriot nationals, Mr Michael P. Hapeshis and Mrs Maria Hapeshi-Michaelidou (“the applicants”), on 10 January 1997.
2.  The applicants were represented by Mr M. Triantafillides, Mr K. Chrysostomides and Mr C. Clerides, three lawyers practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent, Mr Z.M. Necatigil.
3.  The applicants alleged that the Turkish occupation of the northern part of Cyprus had deprived them of their home and properties.
4.  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).
5.  By a decision of 8 February 2000 the Court declared the application admissible.
6.  The applicants and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Government of Cyprus, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)).
THE FACTS
7.  The applicants, who are brother and sister, were born in 1959 and 1942 respectively. The first applicant (who is a Cypriot and British citizen) lives in London, while the second applicant (a Cypriot citizen) resides in Larnaca.
8.  The applicants alleged that until August 1974 they were living in a house owned by their father in Ayios Amvrosios, in the District of Kyrenia (northern part of Cyprus). This house was built on plot no. 233/9 of sheet/plan 13/23. The second applicant, who had been recently married, was living with her husband and daughter in the east wing of the house, a separate residence, while the first applicant was living with his mother and father in the west wing. The plot on which the two semi-detached residences had been built covered an area of 517 square metres (m²); each residence was of 290 m². They both had a garage and two floors. 
9.  The applicants left their house on 13 August 1974, as the Turkish troops were advancing. On 17 August 1974 their father tried to visit his property but was arrested by Turkish soldiers. He was released on the same day, since he was a British citizen.
10.  On 19 May 1991 the applicants' father died. According to his will, dated 18 May 1988, the house and land in question was to be equally shared by the two applicants. On 30 July 1991, Mr T. Michaelides was appointed as executor of his will. On 10 July 1995 the applicants registered, in equal shares, their titles with the Department of Lands and Surveys of the Republic of Cyprus. The first applicant got the west residence, while the second applicant got the east one. The first applicant tried, via the British consular authorities, to visit his property, but did not obtain permission.
11.  The applicants had been informed that their house had been occupied by high-ranked Turkish military officers.
THE LAW
I.  THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A.  The Government's objections
1.  Objection of incompatibility ratione temporis or ratione materiae
(a)  The Government's objection
12.  The Government submitted that, according to the records of the “Turkish-Cypriot Lands Office” in Girne/Kyrenia, the applicants were not the owners of any property in the northern part of Cyprus in 1974. Nor were the applicants, according to the same source, the owners of any property at the date of introduction of the application. The property referred to in the application was originally registered in the name of the Government of Cyprus as a forest, then in the name of the applicants' father and, finally, in the name of the “Turkish Republic of Northern Cyprus” (the “TRNC”). Given that in 1974 the applicants had no right or interest in relation to the property at issue, there was no question of a continuing violation that could have subsisted until 28 January 1987 when Turkey recognised the right of individual petition. Assuming that the applicants had acquired the property in 1995, there was no question of Turkish involvement in their inability to have access to the house in Ayios Amvrosios. Moreover, as they had acquired the property twenty-one years after the events of 1974 and eight years after Turkey's declaration concerning the right of individual petition, the applicants should have known that access to this property was practically impossible and that the Turkish-Cypriot authorities had expropriated it. As a result, they cannot invoke Turkish responsibility. In the light of the above, the application should be considered incompatible either ratione materiae or ratione temporis with the provisions of the Convention.
(b)  The applicants' arguments
13.  Relying on the case-law developed by the Court in the case of Loizidou v. Turkey ((merits), Reports of Judgments and Decisions 1996-VI, 18 December 1996), the applicants alleged that the facts complained of were imputable to Turkey for the purposes of the Convention.
14.  They observed that their father was the lawful owner of the property in question in 1974. The respondent Government could have ascertained this by consulting the “Turkish-Cypriot Lands Office”. There was the expectation that the applicants would, in due course, become the property's registered owners. In fact, the house was constructed as two separate dwellings, one of which had been given by the applicants' father to the second applicant on her marriage, while it had always been the stated intention of the deceased that the second dwelling would become the first applicant's property in due course. Subsequent acts of the “TRNC” could not deprive the applicants' father of his title. The applicants became the legal owners by virtue of their father's will and this was recorded by the official authorities of the Republic of Cyprus. This transaction could not have been recorded by the “Turkish-Cypriot Lands Office” because the authorities of the “TRNC” considered that the property in question had already been expropriated. Therefore, the Government could not rely on the records of the “Turkish Cypriot Lands Office” to contest the applicants' title.
15.  To assume that the applicants had no proprietary rights until 10 July 1995 would only mean that there had not been any continuing violation of their rights under Article 1 Protocol No. 1 between 1974 and that date. In order to establish that there had been such a violation after 10 July 1995 the applicants were only required to show that they had not been allowed to enjoy their property since then. The fact that the applicants knew that they could not enjoy their property when they became the registered owners of it in 1995 was irrelevant.
(c)  The third-party intervener's arguments
16.  The Government of Cyprus recalled that in the case of Loizidou ((merits), cited above) the Court had found that Turkey had responsibility for securing human rights in the occupied area of Cyprus. They challenged the respondent Government's allegations that the “TRNC” was a State or an entity with effective authority, whose creation had interrupted the chain of any Turkish responsibility for the events which took place in northern Cyprus. They moreover reiterated that the violations of the right of property which occurred in the “TRNC” territory constituted a continuing situation and not an instantaneous act of deprivation of ownership.
(d)  The Court's assessment
17.  In its decision on the admissibility of the application, the Court considered that the Government's objections that the application was incompatible ratione materiae and ratione temporis were closely linked to the substance of the applicants' complaints and that they should be examined together with the merits of the application.
18.  The Government did not contest the applicants' statement that their father was the owner of the house in Ayios Amvrosios. They argued, however, that the property at issue had subsequently been expropriated by the “TRNC” authorities. The Court recalls that in the Loizidou case ((merits), cited above, §§ 44 and 46) it held that it could not attribute legal validity for the purposes of the Convention to the provisions of Article 159 of the “TRNC” fundamental law, concerning the acquisition to the “TRNC” of the immovable properties considered to be abandoned on 13 February 1975. It furthermore considered that Greek-Cypriots who, like Mrs Loizidou, had left their properties in the northern part of the island in 1974 could not be deemed to have lost title to their property. It follows that, until his death on 19 May 1991, the applicants' father was still the legal owner the house at issue. He was therefore capable of transmitting ownership to his children, according to his will, dated 18 May 1988.
19.  The Court further notes that on 10 July 1995 the applicants registered their titles of ownership with the Department of Lands and Surveys of the Republic of Cyprus (see paragraph 10 above). Despite this, they were unable to make use of and have access to their property. At the relevant time, Turkey had already recognised the right of individual petition. It is also to be recalled that the Court had duly examined and rejected the objection of inadmissibility by reason of lack of effective control over northern Cyprus raised by the Turkish Government in the case of Cyprus v. Turkey ([GC], no. 25781/94, §§ 69-81, ECHR 2001-IV). It sees no reason to depart from its reasoning and conclusions in the instant case.
20.  It follows that the Government's preliminary objections of incompatibility ratione temporis or ratione materiae should be rejected.
2. Objection of inadmissibility on the grounds of non-exhaustion of domestic remedies and lack of victim status
21.  The Government also 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
22.  The applicants complained that since August 1974, Turkey had prevented them from exercising their right to the peaceful enjoyment of their possessions.
They 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.”
23.  The Government disputed this claim.
24.  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.”
25.  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.”
26.  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).
27.  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 since the date on which they acquired ownership (10 July 1995), the applicants were denied access to and control, use and enjoyment of their properties as well as any compensation for the interference with their property rights.
III.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
28.  The applicants submitted that in 1974 they had their home in Ayios Amvrosios. As they had been unable to return there, they were the victims 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.”
29.  The Government disputed this claim.
30.  The applicants submitted that, contrary to the applicant in the Loizidou case, they had had their principal residence in Ayios Amvrosios. They claimed that any interference with their Article 8 rights had not been justified under the second paragraph of this provision.
31.  The Government of Cyprus submitted that where the applicant's properties constituted the person's home, there was a violation of Article 8 of the Convention.
32.  The Court notes that the Government failed to produce any evidence capable of casting doubt upon the applicants' statement that, at the time of the Turkish invasion, they were regularly residing in Ayios Amvrosios and that this house was treated by them and their family as a home.
33.  Accordingly, the Court considers that in the circumstances of the present case, the house of the applicants qualified as “home” within the meaning of Article 8 of the Convention at the time when the acts complained of took place.
34.  The Court observes that the present case differs from the Loizidou case ((merits), cited above) since, unlike Mrs Loizidou, the applicants actually had a home in Ayios Amvrosios.
35.  The Court notes that since 1974 the applicants had 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.”
36.  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).
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 applicants' right to respect for their home.
IV.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 
38.  The applicants complained of a violation under Article 14 of the Convention on account of discriminatory treatment against them in the enjoyment of their rights under Article 8 of the Convention and Article 1 of Protocol No. 1. They alleged that this discrimination had been based on their national origin.
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.”
39.  The Government disputed this claim.
40.  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).
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
41.  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 applicants
42.  In their just satisfaction claims of 7 April 2000, the applicants requested 91,456 Cypriot pounds (CYP – approximately 156,261 euros (EUR)) for pecuniary damage. They relied on an expert's report assessing the value of their losses which included the loss of annual rent collected or expected to be collected from renting out their property in Ayios Amvrosios, plus interest from the date on which such rents were due until the day of payment. The rent claimed was for the period dating back to January 1987, when the respondent Government accepted the right of individual petition, until April 2000. The applicants did not claim compensation for any purported expropriation since they were still the legal owners of the property. The evaluation report contained a description of Ayios Amvrosios, of its development perspectives and of the applicants' property.
43.  The valuation report calculated the annual rent obtainable from the applicants' property as a percentage (4%) of the market value of the two semi-detached houses in August 1974. A 5% annual increase was applied both to the rents and to the market value of the property. According to the applicants' expert, their houses had a 1974 market value of CYP 38,000 (approximately EUR 64,926), while the rent obtainable from them at that time was CYP 1,520 (approximately EUR 2,597) per annum. Moreover, compound interest for delayed payment was applied at a rate of 8% per annum.
44.  On 25 January 2008, following a request from the Court for an update on the developments of the case, the applicants submitted updated claims for just satisfaction, which were meant to cover the loss of the use of the property from 1 January 1987 to 31 December 2007. They 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 102,379 plus CYP 104,206 for interest. The total sum claimed under this head was thus CYP 206,585 (approximately EUR 352,971).
45.  In their just satisfaction claims of 7 April 2000, the applicants further claimed non-pecuniary damages. They left up to the Court to determine their amount, noting, however, that they considered that the sum of CYP 100,000 (approximately EUR 170,860) for each of them would not be sufficient.
(b)  The Government
46.  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.
47.  The Government 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 applicants had instead proceeded on the assumption that the property market would have continued to flourish with sustained growth during the whole period under consideration.
48.  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 applicants the option to sell the property to the State, thereby relinquishing title to and claims in respect of it.
49.  The report prepared by the Turkish-Cypriot authorities specified that the properties described in paragraph 8 above were possessed by refugees; they could not therefore 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 applicants applied to the Immovable Property Commission, the latter would have offered CYP 17,416.75 (approximately EUR 29,758) to compensate the loss of use from July 1995 onwards and CYP 25,929.69 (approximately EUR 44,303) for the value of the properties. According to an expert appointed by the “TRNC” authorities, the 1974 open-market value of the applicants' properties was CYP 4,237 (approximately EUR 7,239).  Upon fulfilment of certain conditions, the Immovable Property Commission could also have offered the applicants exchange of their properties with Turkish-Cypriot properties located in the south of the island.
50
2.  The third party intervener
51.  The Government of Cyprus fully supported the applicants' updated claims for just satisfaction.
3.  The Court's assessment
52.  The Court first notes that the Government's submission that doubts might arise as to the applicants' title of ownership over the properties at issue (see paragraph 46 above) is, in substance, an objection of incompatibility ratione materiae with the provisions of Article 1 of Protocol No. 1. Such an objection has already been examined and rejected by the Court for the reasons stated in paragraphs 18-20 above. 
53.  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 applicants of the 1974 market value of their 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 applicants (Rule 75 § 1 of the Rules of Court).
B.  Costs and expenses
54.  In their just satisfaction claims of 7 April 2000, relying on bills from their representatives, the applicants sought CYP 3,750 (approximately EUR 6,407) for the costs and expenses incurred before the Court. In their updated claims for just satisfaction of 25 January 2008, they submitted additional bills of costs for the new valuation report and for legal fees amounting to EUR 517.5 and EUR 2,000 respectively. The total sum sought for cost and expenses was thus approximately EUR 8,924.
55.  The Government did not comment on this point.
56.  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 applicants.
FOR THESE REASONS, THE COURT
1.  Dismisses by six votes to one the Government's preliminary objections;

2.  Holds by six votes to one that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3.  Holds by six votes to one that there has been a violation of Article 8 of the Convention;

4.  Holds unanimously that it is not necessary to examine whether there has been a violation of Article 14 of the Convention;

5.  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 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.
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).