(Application no. 46755/99)
24 November 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 Anthousa Iordanou v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Işıl Karakaş, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 November 2009,
Delivers the following judgment, which was adopted on that date:
Lapithos village – Agia Paraskevi and Agia Anastasia:
(a) Land certificate no. 1613 of 22 April 1971, plot no. 199 of sheet/plan XI/22 (Mantres tou Kazeli), with a total extent of 4,683m²; share: whole; on this plot of land there was a small house for shepherds and two shelters for the animals;
(b) Land certificate no. 1459 of 27 April 1971, plot no. 331 of sheet/plan XI/23 (Persterkonas), with a total extent of 25,753 m²; share: whole; use: field with trees;
(c) Land certificate no. 2312 of 27 April 1971, plot no. 51 of sheet/plan XI/31 (Kaminia), with a total extent of 3,679 m²; share: whole; use: field with trees;
(d) Land certificate no. 1623 of 27 April 1971, plot no. 201 of sheet/plan XI/22 (Syrtaros), with a total extent of 16,723 m²; share: whole; use: field with trees;
(e) Sheet/plan 11/23W.1.E.2, plot no. 53; this plot comprised running water and was registered in the name of the applicant for the 1/120 share (equivalent to 3 hours continuous flow fortnightly every 15 days);
(f) Land certificate no. 2774 of 27 April 1971, plot no. 2 of sheet/plan XI/31 (Livadi tou Kolymbou), with a total extent of 89,457 m² (registered for 1/24 share in the name of the applicant); use: field;
(g) Land certificate no. 2744 of 27 April 1971, plot no. 133 of sheet/plan XI/30 (Kolymbes Livadiou), with a total extent of 110,704 m² (registered for 1/96 share in the name of the applicant); use: field;
(h) Land certificate no. 2760 of 27 April 1971, plot no. 1 of sheet/plan XI/31 (Livadi), with a total extent of 227,427 m² (registered for 1/96 share in the name of the applicant); use: field with trees;
Sysklipos village (according to a report attached to the applicant's observations, these properties were registered in the name of the applicant by declaration of gift from her mother Anastasia Polycarpou Panayiotou):
(i) Land certificate of 24 July 1985, plot no. 341 of sheet/plan XI/47 (Pappares), with a total extent of 21,424 m²; share: whole; use: field;
(l) Land certificate of 24 July 1985, plot no. 357 (united with plot no. 368) of sheet/plan XI/47 (Diplopotama), with a total extent of 9,031 m²; share: whole; use: field with trees;
(j) Land certificate of 24 July 1985, plot no. 370 of sheet/plan XI/47 (Diplopotama), with a total extent of 8,362 m²; share: whole; use: field.
- three certificates of affirmation of ownership of Turkish-occupied immovable properties issued on 15 September 2009 by the Republic of Cyprus, in which it was stated that the applicant was the owner of the properties described in paragraph 12 (i), (l) and (j) above;
- three search certificates concerning Turkish-occupied immovable properties issued on 15 September 2009 by the Republic of Cyprus, in which it was stated that the properties described in paragraph 12 (i), (l) and (j) above were transferred to the applicant on 24 July 1985 by Mrs Anastasia Panayiotou.
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
She 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.”
“63. ... as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy, her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1. Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred, be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it clearly falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment.
64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the 'TRNC' and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant's property rights which is imputable to Turkey.
It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant's property rights in the form of a total and continuous denial of access and a purported expropriation without compensation.
Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.”
“187. The Court is persuaded that both its reasoning and its conclusion in the Loizidou judgment (merits) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the 'TRNC' authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1.
189. .. there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. The parties' submissions
(a) The applicant
(b) The Government
- for the property under (a): CYP 525 (approximately EUR 897);
- for the property under (b): CYP 7,700 (approximately EUR 13,156);
- for the property under (c): CYP 550 (approximately EUR 939);
- for the property under (d): CYP 1,250 (approximately EUR 2,135);
- for the property under (f): CYP 223 (approximately EUR 381);
- for the property under (g): CYP 89.3 (approximately EUR 152);
- for the property under (i): CYP 800 (approximately EUR 1,366);
- for the property under (l): CYP 415 (approximately EUR 709);
- for the property under (j): CYP 375 (approximately EUR 640).
No estimate was given for the property under (e) and (h).
2. The third party intervener
3. The Court's assessment
B. Costs and expenses
FOR THESE REASONS, THE COURT
(a) reserves the said question in whole;
(b) invites the Government and the applicant to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 24 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Karakaş is annexed to this judgment.
DISSENTING OPINION OF JUDGE KARAKAŞ
Unlike the majority, I consider that the objection of non-exhaustion of domestic remedies raised by the Government should not have been rejected. Consequently, I cannot agree with the finding of a violation of Article 1 of Protocol No. 1 of the Convention, for the same reasons as those mentioned in my dissenting opinion in the case of Alexandrou v. Turkey (no. 16162/90, 20 January 2009).