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ANDREOU PAPI v. TURKEY - 16094/90 [2010] ECHR 1642 (26 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1642.html
Cite as:
[2010] ECHR 1642
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FOURTH
SECTION
CASE OF ANDREOU PAPI v. TURKEY
(Application
no. 16094/90)
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 Andreou Papi 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. 16094/90) 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 a Cypriot national, Mrs Despo Andreou Papi
(“the applicant”), on 16 January 1990.
In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court dismissed various preliminary objections
raised by the Turkish Government and found a continuing violation of
Article 1 of Protocol No. 1 to the Convention by virtue of the
fact that the applicant was denied access to and control, use and
enjoyment of her properties as well as any compensation for the
interference with her property rights. Furthermore, it found that it
was not necessary to examine the applicant's complaints under Article
8 of the Convention and under Article 14 of the Convention read in
conjunction with Article 8 of the Convention and Article 1 of
Protocol No. 1. Finally, it held that there had been no
violation of Articles 3, 5, 6, 7, 11, 13 and 14 of the Convention,
read in conjunction with Articles 5, 6 and 7 (Andreou Papi v.
Turkey, no. 16094/90, §§ 38, 50, 54, 56, 69, 83,
97, 104, 116, 124 and 130, and points 1-10 of the operative
provisions, 22 September 2009).
Under
Article 41 of the Convention the applicant sought just satisfaction
of 81,899 Cypriot pounds (CYP –
approximately 139,932 euros (EUR)) for the deprivation of her
properties concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
2000. A valuation report, setting out the basis of the applicant's
loss, was appended to her observations. Furthermore, the applicant
claimed CYP 140,000 (approximately EUR 239,204) in respect of
non-pecuniary damage and approximately EUR 12,302 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 applicant 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., §§
142 and 145, and point 11 of the operative provisions).
On
4 March 2010 the Court invited the applicant 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 applicant was moreover invited to submit written
evidence that the properties at stake were still registered in her
name or to indicate and substantiate any transfer of ownership which
might have taken place.
The
applicant and the Government each filed observations on these
matters. On 21 June 2010 the applicant 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 28 April 2010 the properties
described in paragraph 14 (b) below were registered in the name of
“Despo Papi”.
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
applicant's 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 applicant should address her 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 applicant was 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 38 of the principal judgment and point 1 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
applicant's 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 applicant
In
her just satisfaction claims of December 2002, the applicant
requested CYP 81,899 (approximately EUR 139,932) for pecuniary
damage. She relied on an expert's report (provided by the Department
of Lands and Surveys of the Republic of Cyprus) assessing the value
of her losses which included the loss of annual rent collected or
expected to be collected from renting out her properties, plus
interest from the date on which such rents were due until the day of
payment. The rent claimed was for the period dating back to January
1987, when the respondent Government accepted the right of individual
petition, until 2000. The applicant did not claim compensation for
any purported expropriation since she was still the legal owner of
the properties. The valuation report contained a description of the
town of Famagusta and of the Kato Dherynia village, where the
applicant's properties were situated.
The
latter consisted of:
(a) a
building site under subdivision (registered as follows: Kato
Dherynia, provisional no. 19, D/959, share: whole – see
paragraph 10 of the principal judgment);
(b)
real estate transferred to the applicant by way of gift from her
husband on 28 June 2000 (Famagusta, Chrysi Akti, plot no. 778,
block C, sheet/plan 33/21.1.IV, description: buildings with house,
yard and shop on ground floor and house on the first floor; use:
residence; area of the houses: 115 m² each; share: ¾ –
see paragraph 8 of the principal judgment).
The
starting point of the valuation was the annual rental value of the
applicant's share in the properties in 1974 (CYP 357 –
approximately EUR 610), calculated on the basis of a percentage
(varying between 4% and 6%) of their market value (CYP 15,685 –
approximately EUR 26,799). This sum was subsequently adjusted upwards
according to an average annual
rental increase of 5.5%. Compound interest for delayed payment was
applied at a rate of 8% per annum.
In
a letter of 28 January 2008 the applicant observed that a long period
had passed since her first claims for just satisfaction and that the
claim for pecuniary loss needed to be updated according to data
concerning the increase of market value of land in Cyprus. The
average increase in this respect was 10% to 15% per annum.
On
21 June 2010 the applicant produced a revised valuation report, which
was meant to cover the loss of use for the period between 1 January
1987 and 30 June 2010 for the property described in paragraph 14 (a)
above and between 1 January 1987 and 28 June 2000 for the property
described in paragraph 14 (b) above. On the basis of the criteria
used in the previous report, the expert appointed by the applicant
considered that the whole sum due to his client for pecuniary damage
was EUR 395,234.
The
expert produced a synoptic table of “comparable sales for
properties in Famagusta town”, showing the in the period
1969-1973 building sites were sold at sums comprised between CYP
15.69 (approximately EUR 26.80) and CYP 32.26 (approximately EUR
55.11) per square metre, while in 1973 two fields had a price of CYP
44.44 (approximately EUR 75.93) and CYP 48.89 (approximately EUR
83.53) per square metre. Moreover, in 1973 and 1974 two building
sites in Dherynia were sold for CYP 8.93 (approximately EUR 15.25)
and CYP 8.73 (approximately EUR 14.91) per square metre. In 1973
three apartments located in Nicosia had market prices of CYP 106
(approximately EUR 181), CYP 116 (approximately EUR 198) and CYP
130 (approximately EUR 222) per square metre. The expert finally
underlined that in the period 1973-2008 apartments in the unoccupied
areas of Greater Nicosia had an average annual increase in capital
value of 8% per annum. The average annual increase of land in the
same period was of 14.75%.
In
her just satisfaction claims of December 2002, the applicant further
claimed CYP 80,000 (approximately 136,688 EUR) in respect of
non-pecuniary damage for the violations of her rights under Articles
8 of the Convention and 1 of Protocol No. 1. She further claimed CYP
60,000 (approximately EUR 102,516) in respect of the moral
damage suffered for the other violations.
(b) The Government
In
reply to the applicant's just satisfaction claims of December 2002,
the Government submitted that the issue of reciprocal compensation
for Greek-Cypriot property left in the north of the island and
Turkish-Cypriot property left in the south was very complex and
should be settled through negotiations between the two sides under
the auspices of the UN, rather than by adjudication by the European
Court of Human Rights, acting as a first-instance tribunal and
relying on the reports produced by the applicant side only. They
referred, on this point, to the UN plan entitled “Basis for
agreement on a comprehensive settlement of the Cyprus problem”,
in its revised version of 10 December 2002.
Challenging
the conclusions reached by the Court in the Loizidou v. Turkey
case ((just satisfaction), 28 July 1998, Reports of
Judgments and Decisions 1998-IV), the Government 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
applicant's inability to have access to her properties depended on
the political situation in Cyprus 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.
Moreover,
Turkey had no access to the lands office records of the “TRNC”,
which were outside its jurisdiction and control. It was therefore not
in a position to have sufficient knowledge about the possession
and/or ownership of the alleged properties in 1974 or to know their
market values and reasonable rents at the relevant time. The
estimations put forward by the applicant were speculative and
hypothetical, as they were not based on real data and did not take
into consideration the volatility of the property market and its
susceptibility to be influenced by the domestic situation in Cyprus.
During the last 28 years, the landscape in Cyprus had considerably
changed and so had the status of the applicant's properties.
It
was also to be noted that in the present application the estimations
had not been provided by an independent expert, but by the Department
of Lands and Surveys of the Republic of Cyprus, that is to say by a
branch of an interested party which had intervened in the proceedings
before the Court. In any event, Turkey could not be held liable in
international law for the acts of the “TRNC”
expropriating the applicant's properties, as it could not legislate
to make reparation for these acts. The Government invited the Court
to examine whether, as stated in Article 41 of the Convention, “the
internal law of the High Contracting Party concerned” allowed
“reparation to be made”.
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 applicant 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 applicant's representative, inviting his client 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 specified that it
would be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the properties
described in paragraph 14 (b) above. Had the applicant applied
to the IPC, the latter would have offered CYP 9,320.72
(approximately EUR 15,925) to compensate the loss of use and
CYP 12,560.62 (approximately EUR 21,461) for the value of
the properties. According to an expert appointed by the authorities
of the “TRNC”, the 1974 open-market value of the
properties described in paragraph 14 (b) above was CYP 1,875
(approximately EUR 3,203).
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 applicant's rights guaranteed by Article 1 of
Protocol No. 1 by reason of the complete denial of the rights of the
applicant with respect to peaceful enjoyment of her properties in
northern Cyprus (see paragraph 50 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 her land and real estate since 1974, the applicant
had effectively lost all access and control as well as all
possibilities to use and enjoy her properties (see paragraph 48 of
the principal judgment). She is therefore entitled to a measure of
compensation in respect of losses directly related to this violation
of her 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, for the property described
under paragraph 14 (a) above and as from 28 June 2000 for the
properties described under paragraph 14 (b) above, until the present
time (see, mutatis mutandis, 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 the affirmations of
ownership of Turkish-occupied immovable properties produced by the
applicant (see paragraph 6 above) show that on 28 April 2010 she was
still the owner of the properties described in paragraph 14 (b)
above. As to the property described in paragraph 14 (a) above, the
applicant had declared that she had purchased the building site at
issue and paid its full price, being unable to register her title by
reason of the 1974 Turkish invasion (see paragraph 11 of the
principal judgment). The Court has accepted that under these
conditions the applicant had a “possession” over this
plot of land within the meaning of Article 1 of Protocol No. 1 (see
paragraphs 45 and 46 of the principal judgment).
In
the opinion of the Court, the valuations furnished by the applicant
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
applicant, the Court has, as far as appropriate, considered the
estimates provided by her (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 applicant 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 (see 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
applicant (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 notwithstanding its request to submit material
relevant to assessing the 1974 market value of the applicant's
properties, the parties have produced few elements in this respect.
The Government have relied on the accuracy of the IPC's calculations
(see paragraphs 26-27 above), while the applicant has provided
information according to which: in the period 1969-1973 building
sites were sold at sums comprised between EUR 26.80 and EUR
55.11 per square metre; in 1973 two fields had a price of EUR 75.93
and EUR 83.53 per square metre; in 1973 and 1974 two building sites
in Dherynia were sold for EUR 15.25 and EUR 14.91 per square metre;
in 1973 three apartments located in Nicosia had market prices of
EUR 181, EUR 198 and EUR 222 per square metre (see
paragraph 18 above).
The
Court further observes that the applicant 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 applicant, it finds
that the rates applied by her are on the high side (see, mutatis
mutandis, Demades (just satisfaction), cited above, §
24).
Moreover,
with respect to the properties described in paragraph 14 (b) above,
the second valuation report calculated the rents expected to be
collected from 1 January 1987 until 28 June 2000, and not from
28 June 2000 (on which date the real estate at issue was
transferred to the applicant – see paragraphs 14 and 30 above)
until the present time.
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
applicant must have experienced over the years in not being able to
use her properties as she saw fit (see Demades (just
satisfaction), cited above, § 29, and Xenides-Arestis
(just satisfaction), cited above, § 47). It recalls,
however, that it has found that there had been no violation of
Articles 3, 5, 6, 7, 11, 13 and 14 of the Convention, read in
conjunction with Articles 5, 6 and 7 (see paragraph 2 above).
Therefore, no award for pecuniary or non-pecuniary damage should be
made on these accounts.
Having
regard to the above considerations, the Court is of the opinion that
the sums claimed by the applicant in respect of pecuniary and
non-pecuniary damage (respectively EUR 395,234 and EUR 239,204 –
see paragraphs 17 and 19 above) are manifestly excessive. At the
same time, the amount which the “TRNC” authorities could
have offered the applicant in respect of loss of use (the global sum
of EUR 15,925 – see paragraph 28 above) does not seem to take
into due account the number and nature of the properties owned by the
applicant and described in paragraph 14 above. They consisted in one
building site under subdivision and the ¾ shares in two houses
of 115 square metres each, one yard and one shop. In this respect, it
is to be noted that the Turkish-Cypriot authorities made their
estimates only with regard to one of the applicant's possessions,
namely the plot mentioned in paragraph 14 (b) above; the IPC did not
take into account the loss of use for the building plot described in
paragraph 14 (a) above. Making its assessment on an equitable basis,
the Court decides to award the applicant EUR 60,000 in respect of
pecuniary and non-pecuniary damage.
B. Costs and expenses
In
her just satisfaction claims of December 2002, the applicant sought
CYP 7,200 (approximately EUR 12,302) for the costs and expenses
incurred before the Court. On 21 June 2010 the applicant specified
that her total legal fees amounted to EUR 21,046.15, while the new
expert's report had a cost of EUR 575.
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 valuation report in view of the
continuing nature of the violation 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. It is also to be
recalled that in the principal judgment it found no violation of
Articles 3, 5, 6, 7, 11, 13 and 14 of the Convention, read in
conjunction with Articles 5, 6 and 7 (see paragraph 2 above). In the
light of the above, the Court decides to award the total sum of EUR
8,000 for costs and expenses.
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 applicant's claims for just satisfaction;
Holds
(a) that
the respondent State is to pay the applicant, 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
60,000 (sixty thousand euros), plus any tax that may be chargeable,
in respect of pecuniary and non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
the applicant, 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 applicant's 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
