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LOIZOU AND OTHERS v. TURKEY - 16682/90 [2009] ECHR 1328 (22 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1328.html
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[2009] ECHR 1328
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FOURTH
SECTION
CASE OF LOIZOU AND OTHERS v. TURKEY
(Application
no. 16682/90)
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 Loizou and Others 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. 16682/90) 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 twenty-six Cypriot nationals and three
registered companies (“the applicants”), on 26 January
1990.
The
applicants were represented by Mr P. Clerides, a lawyer practising in
Nicosia. The Turkish Government (“the Government”) were
represented by their Agent, Mr Z.M. Necatigil.
The
applicants alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived them of their homes 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 18 May 1999 the Court declared the application partly
admissible.
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
A. The application and the general background
The
application was initially lodged in the name of the “Pancyprian
Association of Affected and Displaced Persons”, an “association
representing all affected and displaced persons as a result of the
Turkish occupation of Cyprus”. By letters of 19 February and 2
March 1990, the Secretariat of the Commission requested the
applicants' representative to clarify whether the application was to
be regarded as having been lodged by each of the individual members
of the association, or by the association itself as a
non-governmental organisation. In a letter of 30 March 1990 the
applicants' representative indicated that “the application
[was] to be regarded as introduced by each of the individual
members”, a list of which was provided.
The
26 individual applicants are Cypriot nationals whose names are
indicated in the list attached to the present judgment; they alleged
that they had been permanent residents of the District of Famagusta,
in the northern part of Cyprus. The 3 remaining applicants (nos. 5,
13 and 27 in the attached list) are private companies registered
under Cypriot law.
In
July 1974, as the Turkish troops were advancing, the individual
applicants fled to the southern part of Cyprus. All the applicants
alleged that they had been the owners of substantial properties in
the District of Famagusta (see details below).
They
alleged that the Turkish military authorities had occupied their
homes and properties and had prevented them from having access to and
using them.
By
letters of 25 September 1999, the applicants' representative
requested the Court to discontinue the proceedings before it with
regard to applicants nos. 18 to 28.
B. The properties claimed by the applicants
The
properties claimed by applicants nos. 1 to 17 can be described as
follows.
Applicant
no. 1, Mr Andreas Loizou, claimed ownership of the following
properties:
(a)
Karavas, plot no. 76/1, sheet/plan XII/9W1, registration no. 5737,
lemon plantation; share: whole; area: 5,352 square metres;
(b)
Karavas, plot no. 76/2, sheet/plan XII/9W1, registration no. 6031,
lemon plantation with a ground-storey residence and a water tank;
share: whole; area: 8,603 sq. m;
(c)
Karavas, plot no. 99, sheet/plan XII/9W2, registration no. 996, olive
grove; share: whole; area: 2,007 sq. m.
In
support of his claim to ownership, applicant no. 1 produced a copy of
the original title deeds. He indicated that the property described in
paragraph 13 (b) above was the house where he and his family were
living at the time of the Turkish invasion.
Applicant
no. 2, Mr Kostas Panage, claimed
ownership of the following properties:
(a)
Nicosia/Yerolakkos, plot no. 694, sheet/plan 21/34&42vill.,
registration no. A590, land with a two-storey house; share: ½;
area: 560 sq. m;
(b)
Nicosia/Yerolakkos, plot no. 52, sheet/plan 21/42E1&E2,
registration no. H48, field; share: whole; area: 4,952 sq. m;
(c)
Nicosia/Yerolakkos, plot no. 32, sheet/plan 21/35W1, registration
no. F30, field; share: whole; area: 9,542 sq. m;
(d)
Nicosia/Yerolakkos, plot no. 147, sheet/plan 21/27W2, registration
no. E130, field; share: whole; area: 10,759 sq. m;
(e)
Nicosia/Yerolakkos, plot no. 539, sheet/plan 21/27W2, registration
no. E478, field; share: whole; area: 6,086 sq. m;
(f)
Nicosia/Yerolakkos, plot no. 332, sheet/plan 21/34E1, registration
no. E299, field; share: 5/24; area: 8,548 sq. m.
In
support of his claim to ownership, applicant no. 2 produced a copy of
the original title deeds. He indicated that the property described in
paragraph 15 (a) above was the house where he and his family were
living at the time of the Turkish invasion.
Applicant
no. 3, Mr Sotiris Panage,
claimed ownership of the following properties:
(a)
Nicosia/Mammari, plot no. 485, sheet/plan 21/33, registration
no. 8433, field; share: whole; area: 2,973 sq. m;
(b)
Nicosia/Yerolakkos, plot no. 332, sheet/plan 21/34E1, registration
no. E299, field; share: 5/24; area: 8,548 sq. m;
(c)
Nicosia/Yerolakkos, plot no. 148, sheet/plan 21/35E2&E1,
registration no. L133, field; share: whole; area: 27,648 sq. m;
(d)
Nicosia/Yerolakkos, plot no. 691, sheet/plan 21/34&42vill.,
registration no. A587, land with ground-storey house; share: whole;
area: 509 sq. m.
In
support of his claim to ownership, applicant no. 3 produced a copy of
the original title deeds. He indicated that the property described in
paragraph 17 (d) above was the house where he and his family were
living at the time of the Turkish invasion.
Applicant
no. 4, Mr Vasos Sofroniou,
claimed ownership of a building site with shops on the ground floor
and living accommodation on the first floor registered as follows:
Nicosia/Yerolakkos, plot no. 442, sheet/plan 21/34.W2, registration
no. N409; share: whole; area 911sq. m.
In
support of his claim to ownership, applicant no. 4 produced a copy of
the original title deed. He indicated that the first-floor residence
was the apartment where he and his family were living at the time of
the Turkish invasion.
Applicant
no. 5, Motovia Ltd, claimed
ownership of the following properties:
(a)
Nicosia/Ayios Dhometios, plot no. 140, sheet/plan 21/37.6.4,
registration no. J143, building land; share: whole; area: 543
sq. m;
(b)
Nicosia/Ayios Dhometios, plot no. 141, sheet/plan 21/37.6.4,
registration no. J144, building land; share: whole; area: 561
sq. m;
(c)
Nicosia/Ayios Dhometios, plot no. 142, sheet/plan 21/37.6.4,
registration no. J145, building land; share: whole; area: 545
sq. m;
(d)
Nicosia/Ayios Dhometios, plot no. 143, sheet/plan 21/37.6.4,
registration no. J146, building land; share: whole; area: 539
sq. m.
In
support of its claim to ownership, applicant no. 5 produced a copy of
the original title deeds.
Applicant
no. 6, Mr Kostas Grigoriades,
claimed ownership of the following properties:
(a)
Nicosia/Yerolakkos, plot no. 366, sheet/plan XXI/35E2&43E1,
registration no. F337, field plus a room; share: ¼; area:
5,175 sq. m;
(b)
Nicosia/Yerolakkos, plot no. 545, sheet/plan XXI/43E1, registration
no. F508, field; share: ¼; area: 378 sq. m;
(c)
Trimithi, plot no. 51/3, sheet/plan XII/10E1&E2, registration
no. 2333, field with trees; share: ¼; area: 9,773 sq. m;
(d)
Karavas, plot no. 315/2, sheet/plan XI/16E2, registration no. 237,
lemon plantation and orchard; share: whole; area: 4,086 sq. m;
(e)
Karavas, plot no. 316, sheet/plan XI/16E2, lemon plantation and
orchard; share: ½; area: 3,893 sq. m.
In
support of his claim to ownership, applicant no. 6 produced a copy of
the original title deeds for the properties described in paragraph 23
(a) and (b) above and “affirmations of ownership of
Turkish-occupied immovable property” issued by the Republic of
Cyprus for the other plots of land.
Applicant
no. 7, Mr Alekos Panteli,
claimed ownership of the following properties:
(a)
Leonarissos, plot no. 105/1, sheet/plan 8/3VIL, building land;
share: whole; area: 236 sq. m;
(b)
Leonarissos, plots nos. 110, 111, 115, sheet/plan 8/3VIL, house and
yard; share: whole; area: 1,419 sq. m;
(c)
Dherynia, plot no. 473/4, sheet/plan 33/36.E.1, building land;
share: whole; area: 532 sq. m;
(d)
Dherynia, plot no. 473/7, sheet/plan 33/36.E.1, building land;
share: whole; area: 527 sq. m;
(e)
Famagusta, plot no. 95-98, sheet/plan 33/21.2.III, registration
no. C95-C98, flat; share: whole; area: 100 sq. m;
(f)
Famagusta, plot no. 95-98, sheet/plan 33/21.2.III, registration
no. C95-C98, flat; share: whole; area: 120 sq. m.
In
support of his claim to ownership, applicant no. 7 produced copies of
“affirmations of ownership of Turkish-occupied immovable
property” issued by the Republic of Cyprus for the properties
described in paragraph 25 (a) and (b) above and copies of the
contracts of sale by which he had purchased the other properties. He
indicated that the property described in paragraph 25 (b) above was
the house where he and his family were living at the time of the
Turkish invasion.
Applicant
no. 8, Mr Yiannis Charalambous,
claimed ownership of 14 fields, 2 garden groves, one orchard and one
borehole in the villages of Karmi, Trimithi and Karavas.
He
further claimed ownership of the following properties:
(a)
Karmi, plot no. 184, sheet/plan 12/26VIL, house with yard; share: ½;
area: 487 sq. m;
(b)
Karmi, plot no. 23/2, sheet/plan 12/35E1, factory; share: whole;
area: 2,598 sq. m;
(c)
Agios Yeoryios, plots nos. 40/2/1, 40/3/1, 40/5, sheet/plan 12/11W2,
ground-storey house with yard; share: whole; area: 336 sq. m;
(d)
Agios Yeoryios, plots nos. 40/3/2, 40/6, 40/2/2, sheet/plan 12/11W2,
ground-storey house with yard; share: whole; area: 345 sq. m;
(e)
Karavas, plot no. 480, sheet/plan 12/17W2, registration no. 2378,
factory; share: whole; area: 1,711 sq. m.
In
support of his claim to ownership, applicant no. 8 produced copies of
“affirmations of ownership of Turkish-occupied immovable
property” issued by the Republic of Cyprus. He indicated that
the property described in paragraph 28 (a) above was the house where
he and his family were living at the time of the Turkish invasion.
Applicant
no. 9, Mr Kostas Kalisperas,
claimed ownership of 6 building sites and 25 fields in the villages
of Vasilia, Pano Keryneia, Kythrea, Kato Dikomo, Sychari and Morphou.
He also claimed that he was the owner of a house with a yard in Pano
Dikomo, registered under plot no. 18, sheet/plan XII/54W1,
registration no. 825; area: 8,696 sq. m.
In
support of his claim to ownership, applicant no. 9 produced copies of
the original title deeds and/or of “affirmations of ownership
of Turkish-occupied immovable property” issued by the Republic
of Cyprus. He indicated that the house described in paragraph 30
above was the house where he and his family were living at the time
of the Turkish invasion. In a letter of 15 June 2004 the applicants'
representative informed the Court that applicant no. 9 had died and
that Mrs Melita Theodoridou had been appointed as the administrator
of his estate. The applicants' representative requested that the
examination of the application be continued on behalf of the
administrator.
Applicant
no. 10, Mr Kostas Mavroudis,
claimed ownership of the following properties:
(a)
Kazaphani, plot no. 468.469, sheet/plan 12/21E2, field with trees;
share: whole; area: 9,477 sq. m;
(b)
Ayios Yeoryios, plot no. 121/1/1, sheet/plan 12/11W2, ground-storey
residence with yard; share: whole; area: 354 sq. m;
(c)
Ayios Yeoryios, plots nos. 15/4/4, 176, 3/4, sheet/plan 12/19W1,
building land; share: whole; area: 494 sq. m;
(d)
Ayios Yeoryios, plot no. 14/3, sheet/plan 12/19W1, factory; share:
whole; area: 574 sq. m;
(e)
Ayios Yeoryios, plots nos. 14/4, 15/4/7, sheet/plan 12/19W1, building
land; share: whole; area: 586 sq. m;
(f)
Ayios Yeoryios, plots nos. 14/5, 15/4/6, sheet/plan 12/19W1, building
land; share: whole; area: 557 sq. m;
(g)
Ayios Yeoryios, plots nos. 14/6, 15/4/5, 176, 3/5,
sheet/plan 12/19W1, building land; share: whole; area: 529 sq.
m;
(h)
Templos, plots nos. 198/2/1, 176, 3/4, sheet/plan 12/19E1, field with
trees; share: ½; area: 7,910 sq. m;
(i)
Karmi, plot no. 72/1/88, sheet/plan 12/19W1, building land; share:
whole; area: 584 sq. m.
In
support of his claim to ownership, applicant no. 10 produced copies
of “affirmations of ownership of Turkish-occupied immovable
property” issued by the Republic of Cyprus. He indicated that
the ground-storey residence described in paragraph 32 (b) above was
the house where he and his family were living at the time of the
Turkish invasion.
Applicant
no. 11, Mr Paraschos Theothoulou,
claimed ownership of the following properties:
(a)
Bellapais, plot no. 53/1, sheet/plan XII/36W2, registration no. 1305,
one room; share: 1/16; area: 14 sq. m;
(b)
Bellapais, plot no. 52/4, sheet/plan XII/36W2&35E2, registration
no. 5202, carob and olive grove; share: 1/8; area: 5,686 sq. m;
(c)
Bellapais, plot no. 52/2, sheet/plan XII/36W2, registration no. 5201,
carob and olive grove; share: 1/8; area: 17,392 sq. m;
(d)
Bellapais, plot no. 28/2, sheet/plan XII/36W1&W2, registration
no. 5200, carob and olive grove; share: 1/8; area: 57,860 sq. m;
(e)
Bellapais, plot no. 46/1, sheet/plan XII/35E1&E2&36W2,
registration no. 5199, carob and olive grove; share: 1/8; area:
59,533 sq. m;
(f)
Bellapais, plot no. 468, sheet/plan XII/29E2, registration no. 258,
field with olive and carob trees; share: whole; area: 3,679 sq. m;
(g)
Kazaphani, plot no. 306/1, sheet/plan XII/30W2, registration
no. 6450, field with olive and carob trees; share: whole; area:
1,673 sq. m;
(h)
Kazaphani, plot no. 453, sheet/plan XII/21E2, registration no. 6431,
field with olive and carob trees; share: 1/8; area: 4,683 sq. m;
(i)
Kazaphani, plot no. 305, sheet/plan XII/30W2, field; share: whole;
area: 2,448 sq. m;
(j)
Kazaphani, plot no. 302, sheet/plan XII/30W2, field with trees;
share: whole; area: 1,133 sq. m;
(k)
Kazaphani, plot no. 304/1, sheet/plan XII/30W2, building land; share:
whole; area: 1,763 sq. m;
(l)
Karakoumi, plots nos. 384/3, 414/2, sheet/plan XII/21E2, registration
no. 217, field; share: 1/8; area: 790 sq. m;
(m)
Karakoumi, plots nos. 413, sheet/plan XII/21E2, house and yard;
share: 1/8; area: 6,002 sq. m.
In
support of his claim to ownership, applicant no. 11 produced copies
of the original title deeds to the properties described in
paragraph 34 (a), (b), (c), (d), (e), (f), (g), (h) and (l)
above and of “affirmations of ownership of Turkish-occupied
immovable property” issued by the Republic of Cyprus for the
other properties.
Applicant
no. 12, Mr Charalampos Bakaloures,
claimed ownership of the following properties:
(a)
Nicosia/Karavostasi (Soloi), plot no. 99, sheet/plan 19/58.W2,
registration no. A130, one-room house; share: whole; area: 14 sq. m;
(b)
Nicosia/Karavostasi (Soloi), plot no. 102, sheet/plan 19/58.W2,
registration no. A133, one-room house; share: ½; area: 24 sq.
m;
(c)
Nicosia/Karavostasi (Soloi), plot no. 103, sheet/plan 19/58.W2,
registration no. A134, house and yard; share: ½; area: 93 sq.
m;
(d)
Nicosia/Karavostasi (Soloi), plot no. 97, sheet/plan 28/2.W1,
registration no. B154, field; share: ½; area: 13,443 sq. m;
(e)
Nicosia/Karavostasi (Xeros), plot no. 31, sheet/plan 19/58.6.1,
registration no. A29, six shops and first-storey residence; share:
whole; area: 488 sq. m;
(f)
Nicosia/Karavostasi (Xeros), plot no. 190, sheet/plan 19/58.6.3,
registration no. A178, field; share: whole; area: 6,129 sq. m;
(g)
Nicosia/Peristeronari, plot no. 39, sheet/plan 28/3.E1, registration
no. B77, field; share: ½; area: 18,061 sq. m;
(h)
Nicosia/Ambelikou, plot no. 214/2, sheet/plan 28/2, registration
no. 7541, field; share: ½; area: 13,954 sq. m;
(i)
Nicosia/Ambelikou, plot no. 132/2, sheet/plan 28/2, registration
no. 7542, field; share: whole; area: 790 sq. m;
(j)
Nicosia/Ambelikou, plot no. 223, sheet/plan 28/1, registration
no. 7489, field; share: ½; area: 6,689 sq. m.
In
support of his claim to ownership, applicant no. 12 produced copies
of the original title deeds. He indicated that the first-storey
residence described in paragraph 36 (e) above was the house where he
and his family were living at the time of the Turkish invasion. On 28
July 1998, applicant no. 12 transferred the properties described in
paragraph 36 (a), (b), (c), (d), (e) and (f) above to his heirs (his
wife and daughters).
Applicant
no. 13, Frixos Constantinou Ltd., claimed
ownership of a house in Argaki (a village in the District of Nicosia
– plot no. 99, sheet/plan XXI/42vill, registration no. 2230;
area: 693 sq. m). In support of its claim to ownership, applicant no.
13 produced a copy of the original title deed.
Applicant
no. 14, Mr Andreas Zodiates, claimed ownership of the
following properties:
(a)
Kato Zodia, plot no. 589, sheet/plan XIX/48, registration no. 5077,
orange plantation; share: ½; area: 4,348 sq. m;
(b)
Kato Zodia, plot no. 576/3, sheet/plan XIX/48, registration no. 5202,
orange plantation; share: ½; area: 1,672 sq. m;
(c)
Kato Zodia, plot no. 590, sheet/plan XIX/48, registration no. 5286,
orange plantation; share: ½; area: 3,345 sq. m;
(d)
Kato Zodia, plot no. 591, sheet/plan XIX/48, registration no. 3658,
orange plantation; share: whole; area: 3,011 sq. m.
In
support of his claim to ownership, applicant no. 14 produced a copy
of the contract of sale (dated 14 March 1966) by which he had
purchased the orange plantations described in paragraph 39 (a), (b)
and (c) above; for the property described in paragraph 39 (d) above
he produced a copy of the original title deed. He indicated that at
the time of the Turkish invasion he and his family were living in a
house owned by his wife.
It
was claimed that applicant no. 15, Mr Takis N. Georgiades,
had been the owner of the following properties:
(a)
Famagusta/Ayios Loukas, plot no. 82, sheet/plan 33/3W1, registration
no. 1694, field; share: whole; area: 706 sq. m;
(b)
Famagusta/Ayios Loukas, plot no. 83, sheet/plan 33/3W1, registration
no. 1695, field; share: whole; area: 4,181 sq. m;
(c)
Famagusta/Ayios Nicolaos, plot no. 133, sheet/plan 33/13.4.I,
registration no. 8256, two storey house; share: 1/3; area: 450 sq. m;
(d)
Famagusta/Engomi, plot no. 2, sheet/plan 24/51W1, registration
no. 696, field; share: whole; area: 13,713 sq. m;
(e)
Famagusta/Dherynia, plots nos. 129, 130, sheet/plan 33/38W1,
registration no. 3432, field; share: whole; area: 203 sq. m;
(f)
Famagusta/Limnia, plot no. 43, sheet/plan 24/49W2, registration
no. 2058, field; share: ½; area: 12,375 sq. m;
(g)
Famagusta/Limnia, plot no. 193, sheet/plan 34/57W1, registration
no. 2405, field; share: ½; area: 9,365 sq. m;
(h)
Famagusta/Kalopsidha, plot no. 287/3, sheet/plan 32/31E1,
registration no. 2879, field; share: ½; area: 8,362 sq.
m;
(i)
Famagusta/Kalopsidha, plot no. 285, sheet/plan 32/31E1, registration
no. 2386, field; share: ½; area: 12,710 sq. m.
Applicant
no. 15 died on 21 April 1976 and on 17 July 1976 Mr Andreas
Matsis and Aristotelis Galatopoulos were appointed administrators of
his estate. The applicants' representative stated that the
application should “continue on behalf of the estate”. In
support of the deceased's claim to ownership, the administrators
produced a copy of the original title deeds.
Applicant
no. 16, Mr Ioannis Hadjinikolas Kamilares, claimed that his
father, Mr Nicolas Georgiou Hadjinicola Kamilares, had owned the
following properties:
(a)
Syrianochori, plot no. 142, sheet/plan XIX/14E2, registration
no. C95, orange plantation; share: whole; area: 3,614 sq. m;
(b)
Syrianochori, plot no. 27, sheet/plan XIX/22E1, registration no. D23,
orange plantation; share: whole; area: 8,705 sq. m;
(c)
Syrianochori, plot no. 258, sheet/plan XIX/22E1, registration
no. D201, orange and grapefruit plantation; share: whole; area:
19,157 sq. m;
(d)
Morphou/Ayios Mamas, plot no. 409, sheet/plan XIX/32.5.II,
registration no. A349, two-storey house and flat; share: whole;
area: 323 sq. m;
(e)
Morphou/Ayios Georgios, plot no. 304, sheet/plan XIX/32.6.III,
registration no. A247, shop; share: whole; area: 95 sq. m;
(f)
Morphou/Ayios Georgios, plot no. 303, sheet/plan XIX/32.6.III,
registration no. A246, coffee shop; share: whole; area: 44 sq.
m.
In
support of his father's right of property, applicant no. 16
produced a copy of a record issued in 1973 by the Inland Revenue of
Cyprus, which had been used for determining tax and estate duties.
Applicant no. 16's father died on 9 April 1973. On 5 June 1979
applicant no. 16 was appointed as the administrator of his estate. He
indicated that the two-storey house described in paragraph 43 (d)
above was the house where he and his family were living at the time
of the Turkish invasion.
Applicant
no. 17, Mr Pantelis Demetri, claimed ownership of a half
share in a house with yard in Stylloi (District of Famagusta –
plots nos. 148, 149, sheet/plan 23/48vil; area: 506 sq. m), where he
and his family were living at the time of the Turkish invasion. In
support of his claim to ownership, he submitted an “affirmation
of ownership of Turkish-occupied immovable property” issued by
the Republic of Cyprus.
THE LAW
I. PRELIMINARY ISSUE
The
Court notes at the outset that the applicant no. 9 died on an
unspecified date after his application was lodged, while the case was
still pending before the Court. The administrator of his estate (Mrs
Melita Theodoridou) informed the Court that she wished to pursue the
application (see paragraph 31 above). Although the heirs of a
deceased applicant cannot claim a general right to the continued
examination of the deceased's application (see Scherer
v. Switzerland, 25 March 1994, Series A no. 287), the Court
has accepted on a number of occasions that close relatives of a
deceased applicant are entitled to take his or her place (see Deweer
v. Belgium, 27 February 1980, § 37, Series A no. 35,
and Raimondo v. Italy, 22 February 1994, § 2,
Series A no. 281-A).
For
the purposes of the instant case, the Court is prepared to accept
that the administrator of applicant no. 9's estate can pursue the
application initially brought by Mr Kostas
Kalisperas (see, mutatis mutandis, Kirilova and
Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and
7319/02, § 85, 9 June 2005, and Nerva and Others v. the
United Kingdom, no. 42295/98, § 33, ECHR
2002 VIII).
The
Court further notes that applicant no. 15 died on 21 April 1976,
before the application was lodged (see paragraph 42 above). Under
these conditions, the Court is unable to accept, as such, the
applicants' representative's request for the examination of the
application to be “continue[d] on behalf of the estate”.
However, for the purposes of the present proceedings, it can be
assumed that, since the date it was lodged, the application has
implicitly been lodged in the name of Mr Takis N. Georgiades's
estate and that its administrators, Mr Andreas Matsis and
Aristotelis Galatopoulos, have locus standi before the Court
to represent the estate's interests.
II. WITHDRAWAL OF THE APPLICATION
The
Court observes that applicants nos. 18 to 28 declared, through their
lawyer, that they wished to withdraw their application (see
paragraph 11 above). The Court considers that, in these
circumstances, applicants nos. 18 to 28 may be regarded as no
longer wishing to pursue their application, within the meaning of
Article 37 § 1 (a) of the Convention.
The
Court further observes that applicant no. 29 has lodged a separate
application (no. 16161/90), in which he complained about the same
facts in relation to the same immovable properties in northern
Cyprus. Application no. 16161/90 was declared admissible on 24 August
1999 and a judgment finding a violation of Article 1 of Protocol No.
1 was delivered on 20 January 2009. The Court is of the opinion that
applicant no. 29's complaints have been addressed within the ambit of
application no. 16161/90. It therefore considers that it is no longer
justified to continue the examination of the complaints introduced by
applicant no. 29, within the meaning of Article 37 § 1 (c)
of the Convention.
Furthermore,
in accordance with Article 37 § 1 in fine, the Court
finds no special circumstances regarding respect for human rights as
defined in the Convention and its Protocols which require the
continued examination of the case with regard to the above-mentioned
applicants.
In
view of the above, it is appropriate to strike the application out of
the list of cases as far as applicants nos. 18 to 29 are concerned.
The
Court will accordingly examine only the complaints lodged by
applicants nos. 1 to 17 (hereinafter referred to as “the
applicants”).
III. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
1. Objection of inadmissibility ratione
personae
The
Government observed, firstly, that the application had been brought
on behalf of a “Pancyprian association representing numerous
affected and displaced persons”. They noted, however, that no
document certifying that this association was duly registered with
corporate status under the laws of Cyprus had been submitted and no
list of its members and/or of its board of directors had been
produced. The form of authority in favour of the applicants' lawyer
bore only two signatures and the names of the signatories were not
given in printed form.
The
Government considered that the “Pancyprian association”
had not been directly affected by the facts complained of and
therefore could not claim to be a victim of any alleged violation.
In
its decision on the admissibility of the application, the Court
noted:
“The respondent Government have not provided any
observations on the admissibility of the case, although they have
been given ample opportunity to do so. It must, therefore, be assumed
that they do not contest the admissibility of the application.”
The
Court does not see any reason to depart from this finding.
Accordingly, the Government may be considered in principle estopped
from raising their objections to admissibility at this stage (Rule 55
of the Rules of Court; see, inter alia, Amrollahi v.
Denmark, no. 56811/00, § 22, 11 July 2002, and Nikolova
v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II).
In
any event, and in so far as certain of the respondent Government's
objections could be considered to have been raised at the
admissibility stage by implication, the Court observes that,
following a request from the Commission Secretariat, on 30 March
1990 the applicants' representative indicated that “the
application [was] to be regarded as introduced by each of the
individual members” of the “Pancyprian Association of
Affected and Displaced Persons” (see paragraph 7 above).
59. It
follows that the Government's preliminary objection of
inadmissibility ratione personae must
be dismissed.
2. Other objections of inadmissibility
The
Government also raised preliminary objections of inadmissibility
ratione loci and ratione temporis, 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.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
applicants complained that since 1974, Turkey had prevented them from
exercising their right to the peaceful enjoyment of their
possessions.
They
invoked Article 1 of Protocol No. 1, which reads:
“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 observed that only applicants nos. 15 and 17 had indicated
that their place of residence was in Famagusta. The other applicants
had their residences elsewhere. In any event, the Turkish military
forces had not been stationed in Famagusta since 1974 and not all
applicants were “owners of properties in Famagusta”, as
shown by the fact that 568 out of the original 596 applicants had
been unable to substantiate their property claims and consequently
had had to withdraw their applications. The applicants had not fled
to southern Cyprus, but had voluntarily moved there of their own
will.
The
Government further observed that applicants nos. 4, 14 and 17 had
failed to substantiate their claims by producing title deeds. As
for the applicants who had produced affirmations of ownership issued
by the Greek-Cypriot Land Office, the Government argued that these
documents should not be accepted as a valid title to property, as
they had been issued purely on the basis of a declaration by the
applicants themselves. Furthermore, the names of the applicants in
the application form and in the affirmation of ownership were not
always identical.
Where
the applicants had died after 1974 (as allegedly had happened in the
cases of applicants nos. 15 and 16) the application could not be
continued in the name of their heirs, as death had broken the chain
of causation. The companies were entitled to complain only in respect
of properties registered in their names and not in respect of real
estate belonging to any other person.
The
Turkish military authorities had not occupied the applicants' homes
and properties. These had been expropriated under Article 159 of the
Constitution of the “Turkish Republic of Northern Cyprus”
(the “TRNC”), a provision which for the purposes of the
Convention should be regarded as a valid legal basis for the
expropriation of the applicant's properties. The question of
compensation for the loss of property or of the return of misplaced
persons to their former residences could not be settled by individual
applications to the Court, but should be discussed and solved at the
political level. In the current situation of the island, it would be
unrealistic to recognise a right to access to property for individual
applicants in isolation from the political situation. In any event,
any interference with the applicants' property rights had been aimed
at rehousing Turkish-Cypriot refugees and had therefore been
justified in the general interest.
2. The applicants
The
applicants alleged that they had produced all the necessary evidence.
In some instances, their title to the properties had been entered in
the relevant District Lands Office Registry prior to the Turkish
invasion; in others, their claim to ownership had been evidenced by
purchase agreements. The applicants had been forced to flee northern
Cyprus and in most cases had been unable to take with them the
certificates of registration or title deeds or other important
documents. Since 1974 the records of the District Lands Registry in
northern Cyprus had been in the hands of the respondent Government
and the applicants could not gain access to them.
Those
applicants who had kept copies of the pre-occupation title documents
had produced them. Those who did not have such copies had obtained
“affirmations of ownership of Turkish-occupied immovable
property” from the Republic of Cyprus on the basis of the
reconstructed land register for the District of Famagusta.
The
applicants alleged that the interference with their property rights
had not served any legitimate aim, had not had a valid legal basis
and had in any event not been proportionate to the purported aim of
finding housing for Turkish-Cypriots. Most of their properties had
not been used for that purpose, as the “Varosha” area of
Famagusta had become a military “ghost town” with no
civilian population at all.
B. The third-party intervener's arguments
The
Government of Cyprus observed that its department of Lands and
Surveys had provided with certificates of affirmation of ownership
owners who did not have title deeds in their possession but whose
title had been entered in District Land Office registers in the
Turkish-occupied area. These certificates were prima facie
evidence of their right of property. The “TRNC”
authorities were in possession of all the records of the Department
of Lands and Surveys relating to the title to properties. It was
therefore the duty of the respondent Government to produce them.
The
third-party intervener further noted that the present case was
similar to that of Loizidou v. Turkey (((merits), 18 December
1996, Reports of Judgments and Decisions 1996-VI), where the
Court had found that the loss of control of property by displaced
persons had arisen as a consequence of the occupation of the northern
part of Cyprus by Turkish troops and the establishment of the “TRNC”
and that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
C. The Court's assessment
The
Court first notes that the documents submitted by the applicants (see
paragraphs 14, 16, 18, 20, 22, 24, 26, 29, 31, 33, 35, 37, 38, 40,
42, 44 and 45 above) provide prima facie evidence that they
had a title to the properties at issue. As the respondent Government
have failed to produce convincing evidence to rebut this, the Court
considers that these properties were “possessions” within
the meaning of Article 1 of Protocol No. 1. It also observes that
applicant no. 16 has produced written proof that his father had died
before the Turkish invasion and that he had been appointed
administrator of his estate (see paragraph 44 above). As far as
applicant no. 12 is concerned, it is noted that he was the owner
of some of the properties (notably, those described in paragraph 36
(a), (b), (c), (d), (e) and (f) above) only until 28 July 1998, when
they were transferred to his wife and daughters (see paragraph 37
above).
The
Court observes 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 (no. 25781/94,
ECHR 2001-IV) 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 applicants
were denied access to and the control, use and enjoyment of their
properties as well as any compensation for the interference with
their property rights.
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicants submitted that, as
they had been unable to return to northern Cyprus, 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.”
The
Government disputed this claim, observing that the inability of
individual applicants to gain access to their homes was the
inevitable consequence of the political state of affairs on the
island. No question under Article 8 could arise in respect of the
applicant companies.
Some
of the applicants submitted that, contrary to the applicant in the
Loizidou case, they had had their home and businesses in
northern Cyprus. They claimed that any interference with their
Article 8 rights had not been justified under the second paragraph of
this provision.
The
Government of Cyprus submitted that where the applicants' properties
constituted the person concerned's home, there had been a violation
of Article 8 of the Convention.
The
Court first notes that applicants nos. 5, 6, 11 and 13 have not
clearly indicated their place of residence in northern Cyprus at the
time of the Turkish invasion. They have therefore failed to
substantiate their Article 8 complaint. It also notes that in
the case of applicant no. 15, the application should be considered as
having been brought in the name of the estate of Mr Takis
N. Georgiades (see paragraph 48 above) and observes that it has
not been established that the deceased and/or the administrators of
his estate were residing in the District of Famagusta.
It
follows that no violation of Article 8 of the Convention can be found
in respect of applicants nos. 5, 6, 11, 13 and 15.
As
regards applicant no. 14, the Court observes that he was not the
owner of the house where he was allegedly living at the time of the
Turkish invasion (see paragraph 40 above). Under these circumstances,
the Court is not convinced that a separate issue may arise under
Article 8 of the Convention. It therefore considers that it is not
necessary to examine whether there has been a continuing violation of
this provision in respect of applicant no. 14.
As
to the remaining applicants, the Court notes that the Government
failed to produce any evidence capable of casting doubt upon their
statements that, at the time of the Turkish invasion, they were
regularly residing in northern Cyprus in houses belonging to them or
their close relatives that were treated by them and their families as
homes (see paragraphs 14, 16, 18, 20, 26, 29, 31, 33, 37, 44 and 45
above).
Accordingly,
the Court considers that in the circumstances of the present case,
the houses of applicants nos. 1, 2, 3, 4, 7, 8, 9, 10, 12, 16 and 17
qualified as “homes” 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, applicants
nos. 1, 2, 3, 4, 7, 8, 9, 10, 12, 16 and 17 actually had a home in
northern Cyprus.
The
Court notes that since 1974 these applicants have been unable to gain
access to and to use their homes. In this connection, it points out
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 right of
applicants nos. 1, 2, 3, 4, 7, 8, 9, 10, 12, 16 and 17 to respect for
their homes.
VI. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION AND
OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 8
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The
applicants complained of a violation of the general obligation to
respect human rights enshrined in Article 1 of the Convention.
They also 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
was based on their 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).
VII. 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 applicants
In
their just satisfaction claims of September 1999, the applicants
requested an award in respect of pecuniary damage. They relied on
experts' reports assessing the value of their losses which included
the loss of annual rent collected or expected to be collected from
renting out their properties, plus interest from the date on which
such rents were due until the date 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 1999. The
applicants did not claim compensation for any purported expropriation
since they were still the legal owners of the properties.
The
starting point of the valuation reports was the rental value of the
applicants' properties in 1974, calculated on the basis of a
percentage of their market value or assessed by comparing the rental
value of similar land at the relevant time. This sum was subsequently
adjusted upwards by applying an average
annual rental increase varying between 5% and 12%. Compound
interest for delayed payment was applied at a rate of 8% per annum.
Applicant
no. 1, Mr Andreas Loizou, sought 618,206 Cypriot Pounds
(CYP – approximately euros 1,056,266 (EUR)). According to
the expert, the 1974 market and/or rental values of his properties
were as follows:
-
property described in paragraph 13 (a) above: market value
CYP 37,464; rental value CYP 2,248;
-
property described in paragraph 13 (b) above: market value
CYP 66,500; rental value CYP 2,660;
-
property described in paragraph 13 (c) above: market value CYP 7,025;
rental value CYP 442.
Applicant
no. 2, Mr Kostas Panage,
sought CYP 125,236 (approximately EUR 213,978). According to
the expert, the 1974 market and/or rental values of his share in the
properties were as follows:
-
property described in paragraph 15 (a) above: market value CYP 6,910;
rental value CYP 276;
-
property described in paragraph 15 (b) above: market value CYP 9,904;
rental value CYP 594;
-
property described in paragraph 15 (c) above: rental value CYP 19;
-
property described in paragraph 15 (d) above: rental value CYP 22;
-
property described in paragraph 15 (e) above: rental value CYP 12;
-
property described in paragraph 15 (f) above: rental value CYP 4.
Applicant
no. 3, Mr Sotiris Panage,
sought CYP 29,376 (approximately EUR 50,191). According to the
expert, the 1974 market and/or rental values of his share in the
properties were as follows:
-
property described in paragraph 17 (a) above: rental value CYP 7;
-
property described in paragraph 17 (b) above: rental value CYP 4;
-
property described in paragraph 17 (c) above: rental value CYP 55;
-
property described in paragraph 17 (d) above: market value
CYP 11,663; rental value CYP 466.
Applicant
no. 4, Mr Vasos Sofroniou,
sought CYP 96,188 (approximately EUR 164,346). According to the
expert, the 1974 market value of the property described in paragraph
19 was CYP 28,875, while its rental value was CYP 1,505.
Applicant
no. 5, Motovia Ltd,
sought CYP 223,517 (approximately EUR 381,901). According
to the expert, the 1974 market and/or rental values of its properties
were as follows:
-
property described in paragraph 21 (a) above: market value CYP 5,430;
rental value CYP 326;
-
property described in paragraph 21 (b) above: market value CYP 5,049;
rental value CYP 303;
-
property described in paragraph 21 (c) above: market value CYP 4,905;
rental value CYP 294;
-
property described in paragraph 21 (d) above: market value CYP 5,390;
rental value CYP 323.
Applicant
no. 6, Mr Kostas Grigoriades,
sought CYP 295,994 (approximately EUR
505,735). According to the expert, the 1974 market and/or rental
values of his share in the properties were as follows:
-
property described in paragraph 23 (a) above: market value CYP 3,881;
rental value CYP 233;
-
property described in paragraph 23 (b) above: market value CYP 756;
rental value CYP 45;
-
property described in paragraph 23 (c) above: market value CYP 9,773;
rental value CYP 586;
-
property described in paragraph 23 (d) above: market value
CYP 16,344; rental value CYP 981;
-
property described in paragraph 23 (e) above: market value CYP 7,786;
rental value CYP 467.
Applicant
no. 7, Mr Alekos Panteli, sought
CYP 142,803 (approximately EUR 243,993). According to the
expert, the 1974 market and/or rental values of his properties were
as follows:
-
property described in paragraph 25 (a) above: market value CYP 236;
rental value CYP 14;
-
property described in paragraph 25 (b) above: market value
CYP 10,219; rental value CYP 409;
-
property described in paragraph 25 (c) above: market value CYP 1,862;
rental value CYP 112;
-
property described in paragraph 25 (d) above: market value CYP 1,845;
rental value CYP 111;
-
property described in paragraph 25 (e) above: market value
CYP 12,000; rental value CYP 720;
-
property described in paragraph 25 (f) above: market value
CYP 14,400; rental value CYP 864.
Applicant
no. 8, Mr Yiannis Charalambous,
sought CYP 1,966,793 (approximately
EUR 3,360,462). According to the expert, the overall 1974 market
value of the properties described in paragraph 27 above was
CYP 177,729, while their total rental value was CYP 10,639. In
addition to that, the 1974 market and/or rental values of his share
in the other properties were as follows:
-
property described in paragraph 28 (a) above: market value CYP 5,138;
rental value CYP 206;
-
property described in paragraph 28 (b) above: market value CYP 4,228;
rental value CYP 296;
-
property described in paragraph 28 (c) above: market value
CYP 10,620; rental value CYP 425;
-
property described in paragraph 28 (d) above: market value
CYP 12,690; rental value CYP 508;
-
property described in paragraph 28 (e) above: market value CYP 4,222;
rental value CYP 296.
Applicant
no. 9, Mr Kostas Kalisperas,
sought CYP 1,999,447 (approximately
EUR 3,416,255). According to the expert, the overall 1974 market
values of the building land mentioned in paragraph 30 above was
CYP 78,614, while their total rental value was CYP 4,716. The
1974 annual rent obtainable from his 25 fields was CYP 14,688. The
1974 market value of the applicant's house was CYP 19,600 and its
rental value was CYP 1,087.
Applicant
no. 10, Mr Kostas Mavroudis,
sought CYP 758,090 (approximately EUR 1,295,272).
According to the expert, the 1974 market and/or rental values of his
share in the properties were as follows:
-
property described in paragraph 32 (a) above: market value
CYP 17,059; rental value CYP 1,024;
-
property described in paragraph 32 (b) above: market value
CYP 22,800; rental value CYP 1,140;
-
property described in paragraph 32 (c) above: market value CYP 5,434;
rental value CYP 326;
-
property described in paragraph 32 (d) above: market value
CYP 20,670; rental value CYP 1,654;
-
property described in paragraph 32 (e) above: market value CYP 6,446;
rental value CYP 387;
-
property described in paragraph 32 (f) above: market value CYP 5,570;
rental value CYP 334;
-
property described in paragraph 32 (g) above: market value CYP 5,290;
rental value CYP 317;
-
property described in paragraph 32 (h) above: market value
CYP 15,820; rental value CYP 949;
-
property described in paragraph 32 (i) above: market value CYP 5,256;
rental value CYP 315.
Applicant
no. 11, Mr Paraschos Theothoulou,
sought CYP 416,694 (approximately EUR 711,963). According
to the expert, the overall 1974 market value of his share in the
properties was CYP 42,212.64, while their rental value was CYP
2,446.82.
Applicant
no. 12, Mr Charalampos Bakaloures,
sought CYP 548,953 (approximately EUR 937,941). According to
the expert, the 1974 market and/or rental values of his share in the
properties were as follows:
-
property described in paragraph 36 (a) above: market value CYP 252;
rental value CYP 10;
-
property described in paragraph 36 (b) above: market value CYP 222;
rental value CYP 9;
-
property described in paragraph 36 (c) above: market value CYP 729;
rental value CYP 29;
-
property described in paragraph 36 (d) above: rental value CYP 336;
-
property described in paragraph 36 (e) above: market value
CYP 37,856; rental value CYP 1,914;
-
property described in paragraph 36 (f) above: market value
CYP 42,774; rental value CYP 2,566;
-
property described in paragraph 36 (g) above: rental value CYP 12;
-
property described in paragraph 36 (h) above: rental value CYP 314;
-
property described in paragraph 36 (i) above: rental value CYP 36;
-
property described in paragraph 36 (j) above: rental value CYP 7.
Applicant
no. 13, Frixos Constantinou Ltd., sought CYP 14,927
(approximately EUR 25,504). According to the expert, the 1974 market
value of the house described in paragraph 38 above was CYP 8,136,
while its annual rental value was CYP 285.
Applicant
no. 14, Mr Andreas Zodiates, sought CYP 18,148
(approximately EUR 31,007). According to the expert, in 1974 the
total annual rent obtainable from renting out his share in the orange
plantations described in paragraph 39 above was CYP 346.21.
The
administrators of the estate of applicant no. 15, Mr Takis
N. Georgiades, sought CYP 1,292,679 (approximately EUR
2,208,671). According to the expert, the 1974 market and/or rental
values of the deceased's share in the properties were as follows:
-
property described in paragraph 41 (a) above: market value CYP 6,001;
rental value CYP 300.05;
-
property described in paragraph 41 (b) above: market value
CYP 50,172; rental value CYP 2,508.6;
-
property described in paragraph 41 (c) above: market value
CYP 16,200; rental value CYP 810;
-
property described in paragraph 41 (d) above: market value
CYP 68,565; rental value CYP 3,428.25;
-
property described in paragraph 41 (e) above: market value CYP 2,233;
rental value CYP 133.98;
-
property described in paragraph 41 (f) above: market value CYP 6,188;
rental value CYP 216.56;
-
property described in paragraph 41 (g) above: market value CYP 3,746;
rental value CYP 131.11;
-
property described in paragraph 41 (h) above: rental value CYP 8.36;
-
property described in paragraph 41 (i) above: rental value CYP 12.71.
Applicant
no. 16, Mr Ioannis Hadjinikolas Kamilares, sought CYP 165,154
(approximately EUR 282,182). According to the expert, the 1974 market
and/or rental values of his father's properties were as follows:
-
property described in paragraph 43 (a) above: rental value CYP 163;
-
property described in paragraph 43 (b) above: rental value CYP 392;
-
property described in paragraph 43 (c) above: rental value CYP 862;
-
property described in paragraph 43 (d) above: market value
CYP 32,230; rental value CYP 1,329;
-
property described in paragraph 43 (e) above: market value CYP 4,500;
rental value CYP 270;
-
property described in paragraph 43 (f) above: market value CYP 2,250;
rental value CYP 135.
Applicant
no. 17, Mr Pantelis Demetri, sought CYP 3,669 (approximately
EUR 6,268). According to the expert, the 1974 market value of his
share in the house was CYP 1,750, while at that period an annual rent
of CYP 70 could have been obtained from renting it out.
In
a letter of 28 January 2008 the applicants observed that a long
period had passed since their first claims for just satisfaction and
that the claim for pecuniary loss needed to be updated according to
data concerning the increase in market value of the land in Cyprus.
The average increase in this respect was 10% to 15% per annum.
In
their just satisfaction claims of September 1999, all the applicants
further claimed CYP 40,000 (approximately EUR 68,344) each in
respect of non-pecuniary damage. They stated that this sum had been
calculated on the basis of the sum awarded by the Court in the
Loizidou case ((just satisfaction), cited above) while taking
into account the fact that the period in respect of which the claim
was made in the instant case was longer. With the exception of
applicants nos. 5, 6, 11 and 13, they also claimed the additional sum
of CYP 70,000 (approximately EUR 119,602) each with respect
for the moral damage suffered for the loss of their homes.
(b) The Government
115. The
Government filed comments on the applicants' claims for just
satisfaction on 15 September 2008. They pointed out that almost all
the applicants had produced old certificates or title deeds or
otherwise not fully reliable evidence of ownership and maintained
that the claims for just satisfaction were not ready for examination.
For instance, a sale contract could not prove that the property
allegedly purchased had been effectively transferred to the buyer.
Moreover, some of the properties allegedly owned by
applicants nos. 9 and 15 in fact belonged to a religious trust known
as Vakf. Once it had acquired ownership, its real estate could
not be transferred to individuals. The Government submitted that the
issues relating to respect of the principles applicable to this kind
of property should be left to the domestic courts and that the
European Court of Human Rights should not deliver judgments which
might prejudice the rights of the Cyprus Evcaf Administration (which
had competence over Vakf properties) and those of the
beneficiaries. Applicant no. 16 was only the co-administrator of his
father's estate and could therefore not claim to be a victim of a
violation of Article 1 of Protocol No. 1.
Owing
to the lapse of time since the lodging of the application, new
situations might have arisen (for instance, applicant no. 12's
properties had been transferred to his heirs in 1998); these facts
could be certified only by the Greek-Cypriot authorities, who, since
1974, had reconstructed the registers and records of all properties
in northern Cyprus and had, since 1968, been in possession of the
Lands Records Registers relating to the Morphou region and to some
areas of Nicosia. 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 proven 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.
2. The third party intervener
The
Government of Cyprus fully supported the applicants' claims for just
satisfaction.
3. The Court's assessment
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 paragraphs 115-116 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 properties described in the present
application constituted the applicants' “possessions”
within the meaning of Article 1 of Protocol No. 1 (see paragraph 72
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 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
In
their just satisfaction claims of September 1999, applicants nos. 1
to 8 and 10 to 17 sought CYP 2,280 (approximately EUR 3,895) each for
the costs and expenses incurred before the Court. This sum included
the costs of the experts' reports assessing the value of their
properties. Applicant no. 9 sought CYP 3,560 (approximately EUR
6,082) under this head.
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
applicants.
FOR THESE REASONS, THE COURT
Holds unanimously that the administrator of the
estate of applicant no. 9 has standing to continue the present
proceedings in his stead;
Decides unanimously to strike the application
out of the list of cases in so far as it concerns applicants nos. 18
to 29 and to continue the examination of the application with regard
to applicants nos. 1 to 17;
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 in respect of applicants
nos. 1, 2, 3, 4, 7, 8, 9, 10, 12, 16 and 17;
Holds unanimously that there has been no
violation of Article 8 of the Convention in respect of applicants
nos. 5, 6, 11, 13 and 15;
Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 8 of the
Convention in respect of applicant no. 14;
Holds unanimously that it is not necessary to
examine whether there has been a violation of Articles 1 and 14 of
the Convention, read in conjunction with Article 8 of the Convention
and Article 1 of Protocol No. 1;
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.
ATTACHMENT – LIST OF APPLICANTS
1.
Andreas Loizou
2.
Kostas Panage
3.
Sotiris Panage
4.
Vasos Sofroniou
5.
Motovia Ltd
6.
Kostas Grigoriades
7.
Alekos Panteli
8.
Yiannis Charalambous
9.
Kostas Kalisperas
10.
Kostas Mavroudis
11.
Paraschos Theothoulou
12.
Charalampos Bakaloures
13.
Frixos Constantinou Ltd
14.
Andreas Zodiates
15. Estate of Takis N.
Georgiades
16. Ioannis
Hadjinikolas Kamilares
17.
Pantelis Demetri
18.
N.S. Koutsokoumnis
19.
Lambros Iasonos
20.
Georgios Orphanides
21.
Kyriakos Kousoulis
22.
Savvas Voyiatzis
23.
Lambros Papayiannis
24.
Petros Markettas
25.
Stavros Syrimes
26.
Prodromos Solomou
27. T.
Vasileiou and Sons Ltd
28. Renos
Symeonides
29.
Antonakis Solomonides
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).
