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EPIPHANIOU AND OTHERS v. TURKEY - 19900/92 [2010] ECHR 1623 (26 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1623.html
Cite as:
[2010] ECHR 1623
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FOURTH
SECTION
CASE OF EPIPHANIOU AND OTHERS v. TURKEY
(Application
no. 19900/92)
JUDGMENT
(Just
satisfaction)
STRASBOURG
26
October 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Epiphaniou and Others v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
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 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19900/92) 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 six Cypriot nationals, Mr Phanos Epiphaniou,
Mrs Sofi Phitidou, Mr Kleanthis Stavri, Mr Christodoulos Demetriades,
Mr Theodoros Economou and Mr Anastassis Georgiou (“the
applicants”), on 26 January 1990.
In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court held that the heirs of applicants nos. 4
(Mr Christodoulos Demetriades, who died on 12 August 2005) and 5
(Mr Theodoros Economou, who died on 24 February 2005) had
standing to continue the present proceedings in the deceased's stead,
dismissed various preliminary objections raised by the Turkish
Government and found continuing violations of Article 8 of the
Convention by reason of the complete denial of the right of
applicants nos. 1 (Mr Phanos Epiphaniou), 3 (Mr Kleanthis Stavri) and
5 (Mr Theodoros Economou) to respect for their home and of
Article 1 of Protocol No. 1 to the Convention by virtue of the fact
that all 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. Furthermore, it found that
it was not necessary to examine the applicants' complaints under
Articles 13 and 14 of the Convention and the complaint of applicants
nos. 2 (Mrs Sofi Phitidou), 4 (Mr Christodoulos Demetriades) and 6
(Mr Anastassis Georgiou) under Article 8 of the Convention
(Epiphaniou and Others v. Turkey, no. 19900/92, §§ 19,
20, 27, 37, 39, 41 and 31, and points 1-6 of the operative
provisions, 22 September 2009).
Under
Article 41 of the Convention the applicants sought just satisfaction
for the deprivation of their properties concerning the period between
January 1990 and December 2003 (or, for applicants nos. 1, 2 and 4,
December 2007). Several valuation reports, setting out the basis of
their loss, were appended
to their observations. In particular, applicant no. 1 claimed
645,157.10 euros (EUR), applicant no. 2 claimed EUR 1,006,711.40,
applicant no. 3 claimed EUR 171,680, the heirs of applicant no. 4
claimed EUR 1,200,290.80, the heirs of applicant no. 5 claimed
EUR 147,154 and applicant no. 6 claimed EUR 14,523. Furthermore,
under the head of non-pecuniary damage applicants nos. 1, 2 and 4
claimed approximately EUR 239,204 each, while the other
applicants claimed approximately EUR 170,860 each. All the applicants
claimed a sum for the costs and expenses incurred before the Court.
Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it in whole and invited
the Government and the applicants to submit, within three months,
their written observations on that issue and, in particular, to
notify the Court of any agreement they might reach (ibid., §§
64 and 67, and point 7 of the operative provisions).
On
4 March 2010 the Court invited the applicants and the Government to
submit any materials which they considered relevant to assessing the
1974 market value of the properties concerned by the principal
judgment. The applicants were moreover invited to submit written
evidence that the properties at stake were still registered in their
name or to indicate and substantiate any transfer of ownership which
might have taken place.
Applicants
nos. 1 to 5 and the Government each filed observations on these
matters. On 14 June 2010 applicant no. 1 and the heirs of
applicant no. 4 produced certificates of ownership of
Turkish-occupied immovable properties issued by the Department of
Lands and Surveys of the Republic of Cyprus. It transpires from these
documents that on 18 May 2001 applicant no. 1 had transferred
the properties described in paragraph 15 below to his children (Mrs
Andri Hadjikyriacou, Mrs Marina Clerides and Mr Nicolas Epiphaniou)
and that on 14 August 2008 Mrs Marina Demetriades, who had inherited
a share in the properties of applicant no. 4 described in paragraph
18 below, had transmitted the said share to her two children (Mrs
Christiana Papapetrou and Mr Michael Papapetrou). Applicants
nos. 2 and 3 stated that “no changes have been
effected to the ownership” of their properties. They failed,
however, to produce any written evidence supporting their statement
and/or showing the current ownership of the properties concerned by
the principal judgment. The heirs of applicant no. 5 (Mr
Phivos Economou and Mrs Elli Economou) produced certificates of
ownership of Turkish-occupied immovable property showing that on 15
March 2010 the “land with two houses” described in
paragraph 19 above was registered in their name. No observations
or documents were received from applicant no. 6.
THE LAW
I. PRELIMINARY ISSUE
In
a letter of 22 April 2010 the Government requested the Court to
decide that it was not necessary to continue the examination of the
applicants' just satisfaction claims. They invoked the principles
affirmed by the Grand Chamber in Demopoulos and Others v. Turkey
([GC] (Dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03,
10200/04, 14163/04, 19993/04, 21819/04, 1 March 2010) and argued
that the applicants should address their claims to the Immovable
Property Commission (the “IPC”) instituted by the “TRNC”
Law 67/2005. They reiterated their position on the issue of
exhaustion of domestic remedies in the present case and in other
similar cases on 8 and 22 June 2010.
The
Court first observes that the Government's submissions were
unsolicited; they were received by the Registry long after the
expiration of the time-limit for filing comments on just satisfaction
and almost two months after the delivery of the Grand Chamber's
decision in Demopoulos. It could therefore be held that the
Government are estopped from raising the matter at this stage of the
proceedings.
In
any event, the Court cannot but reiterate its case-law according to
which objections based on non-exhaustion of domestic remedies raised
after an application has been declared admissible cannot be taken
into account at the merits stage (see Demades v. Turkey (merits),
no. 16219/90, § 20, 31 July 2003, and Alexandrou
v. Turkey (merits), no. 16162/90, § 21, 20 January
2009) or at a later stage. This approach has not been modified by the
Grand Chamber, as the cases of Demopoulos and Others had not
been declared admissible when Law 67/2005 entered into force and when
Turkey objected that domestic remedies had not been exhausted.
Furthermore,
the Court considers that its previous finding in the present case
that the applicants were not required to exhaust the remedy
introduced by Law 67/2005 constitutes res judicata. It recalls
that after the compensation mechanism before the IPC was introduced,
the Government raised an objection based on non-exhaustion of
domestic remedies. This objection was rejected in the principal
judgment (see paragraph 20 of the principal judgment and point 2 of
its operative provisions). The Government also unsuccessfully
requested the referral of the case to the Grand Chamber.
It
follows that the Government's request to stay the examination of the
applicants' claims for just satisfaction should be rejected. The
Court will therefore continue to examine the case under Article 41 of
the Convention.
II. 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 22 April 2003, the applicants
requested sums for pecuniary damage. With the exception of applicant
no. 6, they relied on an expert's 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 day of
payment. The rents claimed were for the period dating back to January
1990 until December 2003. The applicants did not claim compensation
for any purported expropriation since they were still the legal
owners of the properties. The evaluation reports contained a
description of the town of Famagusta, of its development perspectives
and of the applicants' properties.
The
starting point of the expert's reports was the open market value of
the properties in August 1974. The annual rent obtainable from them
was then calculated as a percentage (varying from 4% to 6%) of their
estimated value. The expert further took into account the trends of
rent increase on the basis of: (a) the nature of the area of the
properties; (b) the trends for the period 1970-1974; (c) the trends
in the unoccupied areas of Cyprus from 1974 onwards. This last trend
was based on the Consumer Price Index for rents and houses issued by
the Department of Statistics and Research of the Government of
Cyprus, increased by a percentage of 25%. For agricultural land, the
expert proceeded on the basis of a certain annual rental value per
decare (generally between CYP 3 and CYP 5 in 1974). Moreover,
compound interest for delayed payment was applied at a rate of 8% (6%
from 2001 onwards) per annum.
For
applicant no. 1 (Mr Phanos Epiphaniou), the figures given by
the expert were the following:
(a)
property described in paragraph 10 (a) of the principal judgment
(Famagusta, Ayios Ioannis, plot no. 370, sheet/plan 33/12.3.1,
block B; use: residence on 1st floor and shops on
ground floor; share: ½; area of applicant's share: 435 m²
of land and 250 m² of construction): market value in 1974: CYP
42,000 (approximately EUR 71,761); annual rent in 1974: CYP 2,520
(approximately EUR 4,305); estimated loss plus interest: CYP 226,081
(approximately EUR 386,281);
(b)
property described in paragraph 10 (b) of the principal judgment
(Famagusta, Ayios Loukas, plot no. 974, sheet/plan 33/11.E.1,
block C; use: building site for investment; share: whole; area:
521 m²): market value in 1974: CYP 3,000 (approximately
EUR 5,125); annual rent in 1974: CYP 520 (approximately EUR
888); estimated loss plus interest: CYP 22,632 (approximately
EUR 38,669);
(c)
property described paragraph 10 (c) of the principal judgment
(Famagusta, Milia, Haragkas, plot no. 214/4/3, sheet/plan 23/14; use:
land to be divided into building sites; share: whole; area: 1,052
m²): the rent payable in 1974 was calculated on the basis of CYP
5 per decare; rental value in 1974: CYP 5.25 (approximately EUR
9); estimated loss plus interest: CYP 545 (approximately EUR
931).
Thus,
the total sum claimed by applicant no. 1 for pecuniary damage was
thus CYP 249,258 (approximately EUR 425,882).
For
applicant no. 2 (Mrs Sofi Phitidou), the figures given by the
expert were the following:
(a)
property described in paragraph 11 (a) of the principal judgment
(Famagusta, Ayios Nicolaos, plot no. 200, sheet/plan 33/12.6.2,
block E; use: land for development; share: whole; area: 566 m²):
market value in 1974: CYP 25,500 (approximately EUR 43,569);
estimated loss plus interest: CYP 287,255 (approximately EUR
490,803);
(b)
property described in paragraph 11 (b) of the principal judgment
(Famagusta, Kantara-Davlos, plot no. 68.9/1, sheet/plan 7/50.6.1;
use: house with yard used as holiday house; share: whole; area of
land: 1,255 m²; area of construction: 225 m²): market value
in 1974: CYP 15,600 (approximately EUR 26,654); annual rent
in 1974: CYP 624 (approximately EUR 1,066); estimated loss plus
interest: CYP 55,982 (approximately EUR 95,650).
Thus,
the total sum claimed by applicant no. 2 for pecuniary damage was CYP
343,237 (approximately EUR 586,454).
For
applicant no. 3 (Mr Kleanthis Stavri), the expert considered
that the 1974 market value of the property described in paragraph 12
of the principal judgment (Famagusta, Ayias Zonis, plot no. 105,
sheet/plan: 33/12.6.IV, block F; use: house with yard; share: ½;
area of applicant's share of land: 475 m²; area of applicant's
share of construction: 200 m²) was CYP 28,000 (approximately EUR
47,840), the 1974 annual rent was CYP 1,120 (approximately EUR
1,913) and the estimated loss plus interest was CYP 100,480
(approximately EUR 171,680).
Applicant
no. 4 (Mr Christodoulos Demetriades) owned four building sites
and two plots of land which were registered as follows (see paragraph
13 (a), (b), (c), (d), (e) and (f) of the principal judgment):
(a) Famagusta,
Ayios Loucas, plot no. 752, sheet/plan 24/59.E.2, Block D; use:
building site; share: whole; area: 662 m²;
(b) Famagusta,
Ayios Loucas, plot no. 753, sheet/plan 24/59.E.2, block D; use:
building site; share: whole; area: 675 m²;
(c) Famagusta,
Ayios Loucas, plot no. 754, sheet/plan 24/59.E.2, block D; use:
building site; share: whole; area: 694 m²;
(d)
Famagusta, Ayios Loucas, plot no. 755, sheet/plan 24/59.E.2, block D;
use: building site; share: whole; area: 707 m²;
(e) Famagusta,
Ayios Loucas, plot no. 948, sheet/plan 24/59.E.2, block D; use:
land; share: whole; area: 6,213 m²;
(f) Famagusta,
Spathariko, plot no. 270, sheet/plan 24/2.E.2, block D; use: land;
share: ½; area of applicant's share: 18,373.50 m².
The
expert considered that the overall 1974 market value of the first
five properties was CYP 53,000 (approximately EUR 90,555)
and that the estimated loss plus interest was CYP 396,935
(approximately EUR 678,203). For the land described under (f)
above, the rent payable in 1974 was calculated on the basis of CYP 3
per decare; the 1974 rental value was CYP 112.37 (approximately
EUR 192) and the estimated loss plus interest was CYP 5,741
(approximately EUR 9,809).
Thus,
the total sum claimed by applicant no. 4 for pecuniary damage was CYP
402,676 (approximately EUR 688,012).
For
applicant no. 5 (Mr Theodoros Economou), the expert
considered that the 1974 market value of the property described in
paragraph 14 of the principal judgment (Famagusta, Chrysospiliotissa,
plot no. 371, sheet/plan 33/19.3.IV, block D; use: land –
of 743 m² – with two houses of a total area of 370 m²,
one used by the applicant as his residence and the other one for
renting; share: whole) was CYP 24,000 (approximately EUR 41,006), the
1974 annual rent was CYP 960 (approximately EUR 1,640) and the
estimated loss plus interest was CYP 86,126 (approximately
EUR 147,154).
Applicant
no. 6 (Mr Anastassis Georgiou) did not submit any expert report.
He stated that as he was living only on his pension and had no other
income, he could not afford to pay for the valuation of his plots of
land. The latter were registered as follows (see paragraph 15 (a),
(b) and (c) of the principal judgment):
(a) Famagusta,
Latsia, Trikomo, plot no. 137/1/6/2, sheet/plan 15/43; use: land with
trees for agriculture; share: 1/6;
(b) Famagusta,
Pervolia Trikomou, Kokkines, plot no. 127/2/2, sheet/plan 15/43; use:
land for agriculture; share: whole;
(c) Famagusta,
Pervolia Trikomou, Kokkines, plot no. 141, sheet/plan 15/43; use:
land for agriculture; share: whole.
To
the best of applicant no. 6's knowledge and belief, the 1974 value of
the properties described above was not less than CYP 10,000
(approximately EUR 17,086) and the estimated loss plus interest
was at least CYP 8,500 (approximately EUR 14,523).
On
24 January 2008, following a request from the Court for an update on
the developments of the case, applicants nos. 1 and 2 and the heirs
of applicant no. 4 submitted updated claims for just satisfaction,
which were meant to cover the loss of the use of the properties from
1 January 1990 to 31 December 2007. They produced revised valuation
reports, which, on the basis of the criteria adopted in the previous
reports, concluded that the whole sum due for the loss of use was:
EUR 645,157.1 for applicant no. 1; EUR 1,006,711.4 for
applicant no. 2; EUR 1,200,290.8 for applicant no. 4.
On
26 May and 14 June 2010 applicants nos. 1 to 5 produced
revised valuation reports, which were meant to cover the loss of use
for the period between January 1987 and June 2010. On the basis of
the criteria used in the previous reports, the expert appointed by
the applicants considered that the whole sums due to his clients for
pecuniary damage were the following: applicant no. 1: EUR
786,862; applicant no. 2: EUR 1,274,194; applicant no. 3:
EUR 310,195; heirs of applicant no. 4: EUR 1,527,123;
heirs of applicant no. 5: EUR 298,189. No valuation
report was submitted by applicant no. 6.
The
applicants also submitted a synoptic table showing “comparable
sales of building-sites and land within the Municipal area of
Famagusta”, from which it transpires that in the period
1971-1974 building sites had market values comprised between CYP
11.35 and CYP 46.18 per square metre. In the Ayios Loukas Quarter of
Famagusta prices were comprised between CYP 2.22 and CYP 7.61 per
square metre. The heirs of applicant no. 5 moreover indicated that
three building sites in Varosia had been sold for CYP 5.46, 6.19 and
6.16 per square metre.
On
22 June 2010 the applicants produced a “report on 1974 property
prices ... in Turkish occupied northern Cyprus”, prepared by
“EMS Economic Management Ltd.”, to which were annexed 43
copies of files of the Bank of Cyprus relating to loans, mortgages
and valuations undertaken in the period 1971-1974 with respect to
acquisition of properties in Famagusta. Their content was summarised
in a synoptic table. It appears from these documents that Famagusta
could be divided in areas with different prices for real estate. In
particular, the average 1974 price of a square metre of constructible
land was: (a) CYP 102 for the areas on the beach or close to it, plus
the new town centre; (b) CYP 44 in Ayios Nicolaos and Varoshia; (c)
CYP 18 in Stavros Famagusta; (d) CYP 16 to 25 in Kato Varosi e Ayios
Memnon; (e) CYP 41 in Ayia Zoni; (f) CYP 8 in Ayios Loucas. The study
concluded that in view of its location in the Chrysospiliotissa area,
a relatively high land price area which could be compared with Ayios
Nicolaos, in 1974 the land possessed by applicant no. 5 (see
paragraph 19 above) had a price comprised between CYP 32
(approximately EUR 54) and CYP 71 (approximately EUR 121) per square
metre. The applicants further submitted a research from the
archives of a property development company, showing the sales of
twenty apartments in the period 1970-1974. Four apartments were sold
in 1974 for prices ranging from CYP 16,200 (two bedrooms) to CYP
19,000 (three bedrooms). According to this research, the compound
annual appreciation of the apartments since the Turkish invasion had
been 9.50% per year.
In
their just satisfaction claims of 22 April 2003, the applicants
further claimed CYP 100,000 (approximately EUR 170,860) each in
respect of non-pecuniary damage. In their updated claims for
just satisfaction of 24 January 2008, applicants nos. 1 and 2
and the heirs of applicant no. 4 increased their claim to CYP 140,000
(approximately EUR 239,204) each.
(b) The Government
In
reply to the applicants' just satisfaction claims of 22 April 2003,
the Government challenged the conclusions reached by the Court in the
Loizidou v. Turkey judgment ((just satisfaction), 28
July 1998, Reports of Judgments and Decisions 1998-IV)
and considered that in cases such as the present one, no award should
be made by the Court under Article 41 of the Convention. They
underlined that the applicants' inability to have access to their
properties depended on the political situation of the island and, in
particular, on the existence of the UN recognized cease-fire lines.
If Greek-Cypriots were allowed to go to the north and claim their
properties, chaos would explode on the island; furthermore, any award
made by the Court would undermine the negotiations between the two
parties.
The
Government filed comments on the applicants' updated claims for just
satisfaction on 30 June 2008, 15 October 2008 and 22 June 2010. They
pointed out that the present application was part of a cluster of
similar cases raising a number of problematic issues and noted
that some applicants had shared properties and that it was not proved
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.
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.
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
properties to the State, thereby relinquishing title to and claims in
respect of them.
The
report prepared by the Turkish-Cypriot authorities specified that it
would be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the properties
described in paragraphs 11 (a) and 12 of the principal judgment.
The other immovable properties referred to in the application were
possessed by refugees, by the Ministry of Finance and by the Ministry
of Education; they could not 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 properties between 1974 and the
date of payment. Had the applicants applied to the IPC, the latter
would have offered CYP 720,771.63 (approximately EUR 1,231,510) to
compensate the loss of use and CYP 767,719.51 (approximately
EUR 1,311,725) for the value of the properties. According to an
expert appointed by the authorities of the “TRNC”, the
1974 open-market value of the applicants' properties was the
following:
-
applicant no. 1: property described in paragraph 15 (a) above:
CYP 42,373 (approximately EUR 72,398); property described
in paragraph 15 (b) above: CYP 1,695 (approximately
EUR 2,896); property described in paragraph 15 (c) above:
CYP 1,695 (approximately EUR 2,896);
-
applicant no. 2: property described in paragraph 16 (a) above:
CYP 7,203 (approximately EUR 12,307); property described in
paragraph 16 (b) above: CYP 11,864 (approximately
EUR 20,270);
-
applicant no. 3: property described in paragraph 17 above:
CYP 5,084 (approximately EUR 8,686);
-
applicant no. 4: properties described in paragraph 18 (a),
(b), (c) and (d) above: CYP 4,237 (approximately EUR 7,239)
for each plot of land; property described in paragraph 18 (e) above:
CYP 5,932 (approximately EUR 10,135); property described in
paragraph 18 (f) above: CYP 4,745 (approximately EUR 8,107);
-
applicant no. 6: property described in paragraph 20 (a) above:
CYP 2,825 (approximately EUR 4,826); property described in
paragraph 20 (b) above: CYP 8,983 (approximately EUR 15,348);
property described in paragraph 20 (c) above: CYP 11,864
(approximately EUR 20,270).
No
estimate was given for the property owned by applicant no. 5
and described in paragraph 19 above.
Upon
fulfilment of certain conditions, the IPC could also have offered the
applicants exchange of their properties with Turkish-Cypriot
properties located in the south of the island.
In
their comments of 22 June 2010, the Government recalled that in the
case of Demopoulos and Others (cited above) the Grand Chamber
had found that the IPC was an adequate domestic remedy for those
claiming a violation of Article 1 of Protocol No. 1. Notwithstanding
the adoption of a judgment on the merits, it would still be open to
the applicants to apply to the IPC, which would calculate the current
value and the 1974 value of the properties “in a credential way
based on actual data”. On 27 May 2010 the IPC had sent a letter
to the applicants' representative, inviting his clients to introduce
an application before it.
The
Government recalled that under Law No. 67/2005, the following means
of redress were available: a) restitution; b) compensation;
c) exchange. The relevant provisions of the law at issue are
described in Demopoulos and Others (cited above, §§
35-37).
The
Government further noted that in making its assessment as regarded
compensation for the loss of use, the IPC had collected data from the
Department of Lands and Surveys on the 1973-1974 purchase prices for
comparable properties. It had also examined the development of
interest rates of the Cyprus Central Bank. The loss of income was
then calculated by assuming that the obtainable rent would have been
5% of the value of the properties; this last value had been modified
every year on the basis of the land market value index. Cyprus
Central Bank interest rates had been applied on the sums due since
1974.
Being
in possession of the land registers, the Turkish-Cypriot authorities
were in a better position than the applicants and the Greek-Cypriot
authorities to assess the market values of the properties in a
realistic and reliable manner. The applicants had put forward
exaggerated claims and had tended to inflate the 1974 values of their
possessions. The Government therefore requested the Court to
rule on compensation on the basis of the calculations made by the
Turkish-Cypriot authorities, which were “credential and
objective in every aspect”.
The
report prepared by the Turkish-Cypriot authorities confirmed that it
would be possible to envisage restitution of two of the applicants'
properties. Had the applicants applied to the IPC, the latter would
have increased its offer up to CYP 824,977.82 (approximately
EUR 1,409,557) to compensate the loss of use and up to
CYP 839,770.45 (approximately EUR 1,434,831) for the value
of the properties. The expert appointed by the authorities of the
“TRNC” also confirmed the 1974 open-market values of the
applicants' properties as indicated in paragraph 30 above.
In
particular, the IPC would have offered the following sums for each
applicant:
-
applicant no. 1: loss of use: CYP 300,728.27 (approximately
EUR 513,824); value of the properties: CYP 306,566.19
(approximately EUR 523,799);
-
applicant no. 2: loss of use: CYP 125,297.42 (approximately
EUR 214,083); value of the properties: CYP 127,729.77
(approximately EUR 218,239);
-
applicant no. 3: loss of use: CYP 33,409.14 (approximately
EUR 57,082); value of the property: CYP 34,057.70 (approximately
EUR 58,191);
-
applicant no. 4: loss of use: CYP 209,984.15 (approximately
EUR 358,779); value of the properties: CYP 212,838.13
(approximately EUR 363,655);
-
applicant no. 6: loss of use: CYP 155,558.84 (approximately
EUR 265,787); value of the properties: CYP 158,578.66
(approximately EUR 270,947).
No
estimate was given for the pecuniary damage sustained by applicant
no. 5.
Finally,
the Government considered that the amount claimed in respect of
non-pecuniary damage was excessive and unrealistic; given the
existence of an effective domestic remedy, the Court should keep the
award for such damage to a minimum.
2. The Court's assessment
The
Court recalls that it has concluded that there had been a continuing
violation of the applicants' rights guaranteed by Article 1 of
Protocol No. 1 by reason of the complete denial of the right of the
applicants to the peaceful enjoyment of their properties in northern
Cyprus (see paragraph 27 of the principal judgment). There had also
been a continuing violation of Article 8 of the Convention by
reason of the denial of the right of applicants nos. 1, 3 and 5 to
respect for their home (see paragraph 37 of the principal judgment).
Furthermore, its finding of a violation of Article 1 of Protocol No.
1 was based on the fact that, as a consequence of being continuously
denied access to their land and real estate since 1974, the
applicants had effectively lost all access and control as well as all
possibilities to use and enjoy their properties (see paragraph 25 of
the principal judgment). They are therefore entitled to a measure of
compensation in respect of losses directly related to this violation
of their rights as from the date of deposit of Turkey's declaration
recognising the right of individual petition under former Article 25
of the Convention, namely 22 January 1987, until the present time for
applicants nos. 2, 3 and 6 and until 18 May 2001, 12 August 2005 and
24 February 2005 respectively for applicants nos. 1, 4 and 5 (see
Cankoçak v. Turkey, nos. 25182/94 and 26956/95, § 26,
20 February 2001, and Demades v. Turkey (just
satisfaction), no. 16219/90, § 21, 22 April 2008).
In
connection with this, the Court observes that applicants nos. 4 and 5
died on 18 August and 24 February 2005 (see paragraph 2 above); their
heirs have not introduced an autonomous claim concerning a potential
violation of the property rights which they might have acquired in
their quality of successors of Mr Christodoulos Demetriades and Mr
Theodoros Economou, but have merely successfully requested to pursue
the application lodged by the deceased (see paragraphs 18 and 19 of
the principal judgment and point 1 of its operative provisions).
Moreover, the affirmations of ownership of Turkish-occupied immovable
properties produced by applicant no. 1 show that on 18 May
2001 he transferred the properties described in paragraph 15 above to
his three children.
Applicants
nos. 2 and 3 declared that “no changes have been effected
to the ownership” of their properties. However, notwithstanding
an explicit request of the Court (see paragraph 5 above), they have
failed to produce any written evidence, such as certificates of
ownership of Turkish-occupied immovable properties issued by the
Department of Lands and Surveys of the Republic of Cyprus, supporting
their statement and/or showing the current ownership of the
properties concerned by the principal judgment (see paragraph 6
above). Moreover, no document or statement has been submitted by
applicant no. 6. The Court has taken note of this failure; it
considers that it may result in a reduction of the awards to be made
under the head of pecuniary damage.
In
the opinion of the Court, the valuations furnished by the applicants
involve a significant degree of speculation and make insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international (see
Loizidou (just satisfaction), cited above, § 31).
Accordingly, in assessing the pecuniary damage sustained by the
applicants, the Court has, as far as appropriate, considered the
estimates provided by them (see Xenides-Arestis v. Turkey (just
satisfaction), no. 46347/99, § 41, 7 December
2006). In general it considers as reasonable the approach to
assessing the loss suffered by the applicants with reference to the
annual ground rent, calculated as a percentage of the market value of
the properties, that could have been earned during the relevant
period (Loizidou (just satisfaction), cited above, § 33,
and Demades (just satisfaction), cited above, § 23).
Furthermore, the Court has taken into account the uncertainties,
inherent in any attempt to quantify the real losses incurred by the
applicants (see Loizidou v. Turkey (preliminary objections),
23 March 1995, § 102, Series A no. 310, and (merits)
18 December 1996, § 32, Reports 1996-VI).
The
Court notes that in response to its request to submit material
relevant to assessing the 1974 market value of the applicants'
properties, the Government have relied on the accuracy of the IPC's
calculations (see paragraphs 29 and 34-35 above), while the
applicants have referred to comparable sales of building sites in the
Municipal area of Famagusta and in the Ayios Loukas Quarter of
Famagusta; they have moreover produced two detailed studies on the
prices in northern Cyprus at the relevant time (see paragraphs 23
and 24 above).
The
Court further observes that the applicants submitted an additional
claim in the form of annual compound interest in respect of the
losses on account of the delay in the payment of the sums due. While
the Court considers that a certain amount of compensation in the form
of statutory interest should be awarded to the applicants, it finds
that the rates applied by them are on the high side (see, mutatis
mutandis, Demades (just satisfaction), cited above, §
24).
Finally,
the Court is of the opinion that an award should be made in respect
of the anguish and feelings of helplessness and frustration which the
applicants must have experienced over the years in not being able to
use their properties as they saw fit and to enjoy their homes (see
Demades (just satisfaction), cited above, § 29, and
Xenides-Arestis (just satisfaction), cited above, § 47).
Having
regard to the above considerations, the Court is of the opinion that
the sums claimed by applicants nos. 1 to 5 in respect of pecuniary
and non-pecuniary damage (see paragraph 22 above) are excessive. It
considers that the amounts which the “TRNC” authorities
could have offered applicants nos. 1 to 4 in respect of loss of use
(see paragraph 37 above) constitute, in principle, a fair starting
point for calculating the damage sustained by them. It is
regrettable, however, that the pecuniary damage suffered by applicant
no. 5 has not been taken into account in the IPC's calculations (see
paragraphs 30 and 37 above). As far as applicant no. 6 is concerned,
the Court cannot but refer to the only estimate given by him (see
paragraph 20 above); it also took into account his failure to submit
any updated claims for just satisfaction as well as any evidence of
current ownership of the properties concerned by the principal
judgment (see paragraphs 6, 22 and 41 above).
Making
its assessment on an equitable basis, the Court decides to award the
following sums in respect of pecuniary and non-pecuniary damage: EUR
515,000 to applicant no. 1; EUR 300,000 to applicant no. 2;
EUR 100,000 to applicant no. 3; EUR 400,000 to applicant
no. 4; EUR 220,000 to applicant no. 5; EUR 14,523 to
applicant no. 6.
B. Costs and expenses
In
their just satisfaction claims of 22 April 2003, relying on bills
from their representative, the applicants sought CYP 3,310.25
(approximately EUR 5,655) each for the costs and expenses incurred
before the Court. Applicants nos. 1, 2, 3, 4 and 5 also sought the
reimbursement of the costs of the expert report assessing the value
of their properties (amounting to CYP 460, 402.5, 345, 575 and 345
respectively). In their updated claims for just satisfaction of
24 January 2008, applicants nos. 1, 2 and 4 submitted additional
bills of costs for the new valuation report and for legal fees
amounting to EUR 392.98 and EUR 982.45 for each of them. In
2010 applicants nos. 1 to 4 submitted that their further legal fees
and expert report's costs amounted to EUR 876.97 and EUR 1,150
respectively for each of them, while applicant no. 5 sought the
additional sum of EUR 3,955.50.
The
Government did not comment on this point.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see, for
example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
The
Court notes that the case involved perusing a certain amount
of factual and documentary evidence and required a fair degree of
research and preparation. In particular, the
costs associated with producing updated valuation reports in view of
the continuing nature of the violations at stake were essential for
enabling the Court to reach its decision regarding the issue of just
satisfaction (see Demades (just satisfaction), cited
above, § 34).
Although
the Court does not doubt that the fees claimed were actually
incurred, it considers the amount claimed for the costs and expenses
relating to the proceedings before it excessive. Having regard to the
fact that the legal issues raised by the application were almost
identical for all the applicants, it decides to award the total sum
of EUR 12,000.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's request to
stay the examination of the applicants' claims for just satisfaction;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR 515,000
(five hundred and fifteen thousand euros) to applicant no. 1;
EUR 300,000 (three hundred thousand euros) to applicant no. 2;
EUR 100,000 (one hundred thousand euros) to applicant no. 3;
EUR 400,000 (four hundred thousand euros) to the heirs of
applicant no. 4; EUR 220,000 (two hundred and twenty thousand
euros) to the heirs of applicant no. 5; EUR 14,523 (fourteen
thousand five hundred and twenty-three euros) to applicant no. 6
in respect of pecuniary and non-pecuniary damage, plus any tax that
may be chargeable on these sums;
(ii) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable
to the applicants and/or their heirs, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
