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HADJITHOMAS AND OTHERS v. TURKEY - 39970/98 [2010] ECHR 1644 (26 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1644.html
Cite as:
[2010] ECHR 1644
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FOURTH
SECTION
CASE OF HADJITHOMAS AND OTHERS v. TURKEY
(Application
no. 39970/98)
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 Hadjithomas 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. 39970/98) 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 nine Cypriot nationals, Mr Thomas
George Hadjithomas, Mrs Ioulia Yioupa Hadjithoma, Mrs
Paraskevi Hadjithoma-Hapeshi, Mr Nicos Thomas Hadjithomas, Mrs
Xanthi Antoniou-Hadjithoma, Mr Thomas Hadjithomas, Mr
Christoforos Hadjithomas, Mr Andreas Hadjithomas and Savvas
Hadjithoma (“the applicants”), on 2 February 1998.
In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court held that the second, third, fourth,
fifth, sixth, seventh, eight and ninth applicants had standing to
continue the proceedings also in the first applicant'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 the
first, second, third and fourth applicants 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
there had been no violation of Article 8 of the Convention with
respect to the fifth, sixth, seventh, eight and ninth applicants and
that it was not necessary to examine the applicants' complaint under
Article 14 of the Convention (Hadjithomas and Others v. Turkey,
no. 39970/98, §§ 15, 22, 23, 34, 44, and 46, and
points 1-6 of the operative provisions, 22 September 2009).
Under
Article 41 of the Convention the applicants sought just satisfaction
of 2,056,149 Cypriot pounds (CYP –
approximately 3,513,136 euros (EUR)) for the deprivation of their
properties concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
31 December 2007. Two valuation reports, setting out the basis of the
applicants' loss, were appended to their observations. Furthermore,
the applicants claimed at least EUR 170,860 each in respect of
non-pecuniary damage and approximately EUR 17,276 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., §§
60 and 63, and point 6 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.
The
applicants and the Government each filed observations on these
matters. On 28 May 2010 the applicants 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 in May 2010 a share in the
properties described in paragraph 13 below were registered in
the name of the applicants and/or in the name of the late father of
the sixth, seventh, eighth and ninth applicants (see paragraphs 9 and
11 of the principal judgment).
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 23 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 21 April 2000, the applicants
requested CYP 820,719 (approximately EUR 1,402,280) in respect of
pecuniary damage. They relied on an expert's report assessing the
value of their losses which included the loss of annual rent
collected or expected to be collected from renting out their
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 September 1999. The applicants
did not claim compensation for any purported expropriation since they
were still the legal owners of the properties. The valuation report
contained a description of the villages of Ayios Amvrosios, Klepini
and Chartzia, of their development perspectives and of the
applicants' properties. The latter included various shares in 33
plots of land; the family house (registered under no. 10920,
plot no. 40-41-476/2); a garden; a non-descript “site”; a
“ruined room”; a “ruined mill with one room”;
and an orchard with 12 mulberry trees (see paragraph 11 of the
principal judgment). The land owned by the applicants had a total
extent approaching 200,000 square metres.
The
expert classified the properties into two broad categories: those
with prospects and potential for immediate development and those
whose immediate or foreseeable prospects were limited to agricultural
use. For the first category of properties, the ground rent was
calculated as a percentage (varying from 4% to 6%) of their market
value; for the second category the rent obtainable in 1974 was
calculated on the basis of the rent payable for similar agricultural
lands (between CYP 2 and 5 per decare per annum for standard plots
and between CYP 25 and 35 per decare per annum for groves). According
to the expert, the 1974 market value of the applicants' house was CYP
19,000 (approximately EUR 32,463) and the annual rent obtainable
from it was CYP 760 (approximately EUR 1,298). Other properties had a
market value ranging from CYP 19,991 to CYP 940. Their total 1974
rental value was estimated at CYP 5,028.55 (approximately EUR 8,591).
The following annual increases were applied: 12 % for ground
rents, 7 % for agricultural properties and 5% for groves and
houses. Moreover, compound interest for delayed payment was applied
at a rate of 8 % per annum.
On
25 January 2008, following a request from the Court for an update on
developments in the case, the applicants submitted updated claims for
just satisfaction, which were meant to cover the period of loss of
use of the properties from 1 January 1987 to 31 December 2007. They
produced a revised valuation report, which, on the basis of the
criteria adopted in the previous report, concluded that the whole sum
due for the loss of use was CYP 1,135,126 plus CYP 921,023 for
interest. The total sum claimed under this head was thus CYP
2,056,149 (approximately EUR 3,513,136).
On
28 May 2010 the applicants produced another revised valuation report,
which was meant to cover the loss of use for the period between
1 January 1987 and 30 June 2010. The expert appointed by the
applicants considered that the whole sum due to his clients for
pecuniary damage was EUR 4,807,021.
The
expert referred to a judgment of the Kyrenia District Court, given on
6 July 1973, concerning compensation in respect of land acquisitions
which had taken place in February 1970. It transpired from this
judgment that the values of land located in Ayios Amvrosios at the
relevant time were between CYP 560 (approximately EUR 956) and
CYP 1,120 (approximately EUR 1,913) per decare and that the land
values had had a 20 % annual increase. He moreover submitted a
list of sales of comparable properties in the Kyrenia District,
showing that at dates close to the Turkish invasion the value of
building sites was between CYP 20.08 (approximately EUR 34) and CYP
25.46 (approximately EUR 89) per square metre, while fields and
fields with trees were sold at a price comprised between CYP 0.56
(approximately EUR 0.95) and CYP 2.24 (approximately EUR 3.82)
per square metre.
In
their just satisfaction claims of 21 April 2000, the applicants
further claimed compensation in respect of non-pecuniary damage. They
left it to the Court's discretion to determine the amount, noting,
however, that they considered the sum of CYP 100,000 (approximately
EUR 170,860) for each of them hardly sufficient.
(b) The Government
19. 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 further 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 a comparison could be drawn 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 most of the
properties described in paragraph 13 above, including the
applicants' house. The other immovable property referred to in the
application was possessed by refugees; it 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 191,757.61
(approximately EUR 327,637) to compensate for the loss of use from
January 1996 (when the first applicant transferred part of his
properties to the third and fourth applicants – see paragraphs
11 and 20 of the principal judgment) onwards and CYP 310,872.77
(approximately EUR 531,157) 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' house was CYP 4,661.02
(approximately EUR 7,963). Upon fulfilment of certain
conditions, the IPC could also have offered the applicants an
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 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 confirmed that it
would be possible to envisage restitution of the applicants' house
and of 31 plots of land belonging to them. Had the applicants applied
to the IPC, the latter would have increased its offer up to
CYP 473,588.61 (approximately EUR 809,173) to compensate the
loss of use and up to CYP 686,082.73 (approximately EUR
1,172,241) for the value of the properties. According to an expert
appointed by the authorities of the “TRNC”, the 1974
open-market value of all the applicants' properties was
CYP 102,445.45 (approximately EUR 175,055). The Government noted
that only the first applicant was the owner of the properties in 1974
and that he had transferred them to two of the other applicants on 12
January 1996 (see paragraph 11 of the principal judgment). Therefore,
the loss of income had been calculated from January 1996 onwards.
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 34 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 the first, second, third and
fourth applicants to respect for their home (see paragraph 44 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 32 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 (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 notes that in 1974 the first
applicant was the owner of all the properties concerned by the
principal judgment (see paragraph 20 of the principal judgment) and
that the other applicants had been authorised to pursue the
application initially brought by him (see paragraph 15 of the
principal judgment and point 1 of its operative provisions as well as
paragraph 2 above). Moreover, the affirmations of ownership of
Turkish-occupied immovable properties produced by the applicants (see
paragraph 6 above) show that in May 2010 the properties described in
paragraph 13 above were registered in the name of the applicants
and/or in the name of the late father of the sixth, seventh, eighth
and ninth applicants.
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 v. Turkey (just satisfaction), 28 July 1998,
Reports of Judgments and Decisions 1998-IV). 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 (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 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 notwithstanding its request to submit material
relevant to assessing the 1974 market value of the applicants'
properties, the parties have produced few elements in this respect.
The Government have relied on the accuracy of the IPC's calculations
(see paragraphs 21 and 25-26 above), while the applicants have
referred to the sale, in 1970, of comparable land. According to their
expert's assessment, this sale showed that at the relevant time the
market price of land located in Ayios Amvrosios was between EUR 956
and EUR 1,913 per decare, which is between EUR 0.956 and EUR 1.913
per square metre. The applicants also produced a synoptic table
showing that at a time close to the Turkish invasion building sites
and fields had been sold for a price comprised between EUR 34 and EUR
89 and between EUR 0.95 and EUR 3.82 per square metre
respectively (see paragraph 17 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 the applicants in respect of pecuniary and
non-pecuniary damage (respectively EUR 4,807,021 and EUR
1,537,740 – see paragraphs 16 and 18 above) are manifestly
excessive. It considers that the amount which, according to the
Government, the “TRNC” authorities could have offered in
respect of loss of use (the global sum of EUR 809,173 – see
paragraph 27 above) could constitute a fair basis for compensating
the damages sustained by the applicants. It recalls that their
properties consisted in one house, 33 plots of land, one garden, one
“site”, one “ruined room”, one “ruined
mill with one room” and one orchard; according to the
certificates provided by the applicants (see paragraph 6 above),
their land had a total extent approaching 200,000 square metres (see
paragraph 13 above). However, as indicated by the Government, the IPC
has calculated the loss of income from January 1996 onwards (see
paragraph 27 in fine above), and not from 22 January 1987
until the present time (see paragraphs 29 and 30 above). Making
its assessment on an equitable basis, the Court decides to award the
applicants EUR 1,000,000 in respect of pecuniary and non-pecuniary
damage.
B. Costs and expenses
In
their just satisfaction claims of 21 April 2000, relying on bills
from their representative, the applicants sought CYP 4,250
(approximately EUR 7,261) and 1,750 pounds sterling
(approximately EUR 2,110) for the costs and expenses incurred before
the Court. They further claimed CYP 3,000 (approximately EUR
5,125) for the expenses pertaining to the valuation report. They
stated that they had received legal aid in the amount of 4,100 French
Francs (approximately EUR 625). In their updated claims for just
satisfaction of 25 January 2008, the applicants submitted
additional bills of costs for the new valuation report and for legal
fees amounting to EUR 690 and EUR 2,000 respectively. The
total sum sought for cost and expenses was thus approximately
EUR 17,186. Finally, on 28 May 2010 the applicants
submitted that their further legal fees and expert report's costs
amounted to EUR 1,400 and EUR 11,500 respectively.
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 reports in view of the
continuing nature of the violations at stake were essential to enable
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. Taking into account
the sum received by the applicants by way of legal aid (approximately
EUR 625), it decides to award EUR 7,375 under this head.
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 the applicants, 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
1,000,000 (one million euros), plus any tax that may be chargeable,
in respect of pecuniary and non-pecuniary damage;
(ii) EUR
7,375 (seven thousand three hundred and seventy-five euros), plus any
tax that may be chargeable to the applicants, 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
