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IORDANIS IORDANOU v. TURKEY - 43685/98 [2010] ECHR 1645 (26 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1645.html
Cite as:
[2010] ECHR 1645
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FOURTH
SECTION
CASE OF IORDANIS IORDANOU v. TURKEY
(Application
no. 43685/98)
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 Iordanis Iordanou 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. 43685/98) 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 a Cypriot national, Mr
Iordanis Iordanou (“the applicant”), on 15 September
1998.
In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court 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 applicant to respect for his home and 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 his
properties as well as any compensation for the interference with his
property rights. Furthermore, it found that it was not necessary to
examine the applicant's complaint under Article 14 of the Convention
(Iordanis Iordanou v. Turkey, no. 43685/98, §§ 13,
22, 30 and 32 and points 1-4 of the operative provisions, 22
September 2009).
Under
Article 41 of the Convention the applicant sought just satisfaction
of 1,574,166 Cypriot pounds (CYP –
approximately 2,689,620 euros (EUR)) for the deprivation of his
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
applicant's loss, were appended to his observations. Furthermore, the
applicant claimed approximately EUR 439,560 in respect of
non-pecuniary damage and approximately EUR 20,041 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., §§
52 and 55, and point 5 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 his
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 26 May 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 29 March 2010 the properties
described in paragraph 13 (a), (b), (c), (d) and (e) below were
registered in the applicant's name.
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 his 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 13 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
his just satisfaction claims of 30 August 2002, the applicant
requested CYP 870,000 (approximately EUR 1,486,482) for pecuniary
damage. He relied on an expert's report assessing the value of his
losses which included the loss of annual rent collected or expected
to be collected from renting out his 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 1 January 2003. The applicant did not claim compensation
for any purported expropriation since he was still the legal owner of
the properties. The valuation report contained a description of
Karavas village and of the applicant's properties. The latter
consisted of two houses, three fields and one source of running
water. They were registered as follows (see paragraphs 8, 9 and 10 of
the principal judgment):
(a) plots nos. 268 and 269, sheet/plan XI/16W1 and 8W2,
house consisting of three ground floor rooms, two basement rooms, one
kitchen, two wells, one turbine water pump and one water storage
tank, registered in the name of the applicant by virtue of
registration no. 5725;
(b) plots nos. 20 and 21/3, sheet/plan XI/16W2.E1, house
consisting of three ground floor rooms, one room upstairs, two wells,
one electric water pump and one water storage pump, registered in the
name of the applicant by virtue of registration no. 5678 of 23
January 1970;
(c) plot no. 273, sheet/plan XI/16W1, field with lemon
groves of a total extent of 6,355 m², registered in the name of
the applicant by virtue of registration no. 151 of 23 March
1956;
(d) plot no. 25, sheet/plan XII/18W1, field with carob and
olive trees of a total extent of 11,372 m², registered in the
name of the applicant by virtue of registration no. 4091 of 16 April
1957;
(e) plots nos. 76 and 79, sheet/plan XII/18W1, field with
carob and olive trees of a total extent of 35,452 m², registered
in the name of the applicant by virtue of registration no. 4269 of
23 January 1970;
(f) plot no. 140, sheet/plan XI/24W2, source of running
water, registered for the 1/224 share in the name of the applicant.
The
starting point of the valuation report was the rental value of the
applicant's properties in 1974, calculated as a percentage (varying
from 4 to 6%) of their 1974 open market value. The houses owned by
the applicant (see paragraphs 13 (a) and (b) above) were of about 120
and 100 m² respectively. According to the expert, in 1974 their
market value, together with the land annexed to them, could be
estimated at CYP 20,500 (approximately EUR 35,026) and CYP
29,000 (approximately EUR 49,549). The plots of land described
under paragraph 13 (c), (d) and (e) above had a 1974 market value of
CYP 50,000 (approximately EUR 85,430), 51,000 (approximately EUR
87,138) and 53,000 (approximately EUR 90,555) respectively. The
market value of the applicant's share in the natural water spring
(see paragraph 13 (f) above) was estimated at CYP 2,700
(approximately EUR 4,613).
The
rents were subsequently adjusted upwards according to an annual
increase of 5 % and compound interest for delayed payment was
applied at a rate of 8 % per annum.
On
24 January 2008, following a request from the Court for an update on
the developments of the case, the applicant submitted updated claims
for just satisfaction, which were meant to cover the loss of the use
of the properties from 1 January 1987 to 31 December 2007. He
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 694,827 plus CYP 879,339 for
interest. The total sum claimed under this head was thus CYP
1,574,166 (approximately EUR 2,689,620).
On
26 May 2010 the applicant 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
applicant considered that the whole sum due to his client for
pecuniary damage was EUR 3,585,248.
In
his just satisfaction claims of 30 August 2002, the applicant further
claimed CYP 228,000 (approximately EUR 389,560) in respect of
non-pecuniary damage. In particular, he claimed CYP 38,000
(approximately EUR 64,926) for the anguish and frustration he
suffered on account of the continuing violation of his property
rights. He stated that this sum had been calculated on the basis of
the sum awarded by the Court in the Loizidou v. Turkey case
((just satisfaction), 28 July 1998, Reports of Judgments and
Decisions 1998-IV), taking into account, however, that the period
of time for which the damage was claimed in the instant case was
longer. The applicant also claimed CYP 114,000 (approximately
EUR 194,780) for the distress and suffering he had been
subjected to due to the denial of his right to respect for his home,
and CYP 76,000 (approximately EUR 129,853) for the violation of
his rights under Article 14 of the Convention.
Finally,
in his updated claims for just satisfaction of 24 January 2008,
the applicant requested the additional sum of EUR 50,000 for
non-pecuniary damages.
(b) The Government
In
reply to the applicant's just satisfaction claims of 30 August 2002,
the Government challenged the conclusions reached by the Court in the
Loizidou case ((just satisfaction), cited above) 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 applicant's inability to have access to his properties
depended on the political situation in Cyprus and, in particular, on
the existence of the UN recognised 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 applicant's 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 applicant 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 applicant 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 the
immovable properties referred to in the application were possessed by
refugees; they could not, therefore, 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 applicant applied to
the IPC, the latter would have offered CYP 175,666.13
(approximately EUR 300,143) to compensate the loss of use and
CYP 187,113.57 (approximately EUR 319,702) for the value of
the properties. According to an expert appointed by the authorities
of the “TRNC”, the 1974 open-market value of the
applicant's properties was the following:
– house described in paragraph 13 (a) above: CYP
1,500 (approximately EUR 2,562);
– house described in paragraph 13 (b) above: CYP
5,500 (approximately EUR 9,397);
– field described in paragraph 13 (c) above: CYP
7,125 (approximately EUR 12,173);
– field described in paragraph 13 (d) above: CYP
8,500 (approximately EUR 14,523);
– field described in paragraph 13 (e) above: CYP
7,950 (approximately EUR 13,583).
No
estimate was given for the source of running water described in
paragraph 13 (f) above.
Upon
fulfilment of certain conditions, the IPC could also have offered the
applicant exchange of his 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 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 confirmed that it
would not be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the properties
described in paragraph 13 above, which were possessed by
refugees. Had the applicant applied to the IPC, the latter would have
increased its offer up to CYP 200,921.42 (approximately EUR
343,294) to compensate the loss of use and up to CYP 204,821.82
(approximately EUR 349,958) for the value of the properties. The
expert appointed by the authorities of the “TRNC” also
confirmed the 1974 open-market values of the applicant's properties
as indicated in paragraph 24 above.
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 8 of
the Convention and Article 1 of Protocol No. 1 by reason of the
complete denial of the rights of the applicant with respect to his
home and the peaceful enjoyment of his properties in northern Cyprus
(see paragraphs 30 and 22 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 his land and real estate since 1974, the applicant had
effectively lost all access and control as well as all possibilities
to use and enjoy his properties (see paragraph 20 of the principal
judgment). He is therefore entitled to a measure of compensation in
respect of losses directly related to this violation of his 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 observes that the affirmations of
ownership of Turkish-occupied immovable properties produced by the
applicant (see paragraph 6 above) show that on 29 March 2010 he was
still the owner of the properties described in paragraph 13 (a), (b),
(c), (d) and (e) above. It is true that the applicant failed to
produce evidence of current ownership over the 1/224 share in the
source of running water described in paragraph 13 (f) above. However,
having regard to the relatively modest economic value of the share at
issue, the Court considers that such evidence is not indispensible
for deciding over the question of just satisfaction.
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 him (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 23 and 28-29 above), while the applicant failed to
provide any relevant data.
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 him 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
applicant must have experienced over the years in not being able to
use his properties as he saw fit and to enjoy his home (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 applicant in respect of pecuniary and
non-pecuniary damage (respectively EUR 3,585,248 and EUR 439,560
– see paragraphs 17 and 18-19 above) are manifestly
excessive. It considers that the amount which, according to the
Government, the IPC could have offered the applicant in respect of
loss of use (approximately EUR 343,294 – see paragraph 30
above) constitutes a fair basis for compensating the damage sustained
by Mr Iordanou. It recalls that his properties consisted in two
houses (of 120 and 100 square metres), 1/224 share in a source of
running water and three fields of a total area of 53,179 square
metres (see paragraph 13 above).
Making its assessment on an equitable basis, the Court decides
to award the applicant EUR 350,000 in respect of pecuniary and
non-pecuniary damage.
B. Costs and expenses
In
his just satisfaction claims of 30 August 2002, relying on bills from
his representative, the applicant sought CYP 4,621.6 (approximately
EUR 7,896) for the costs and expenses incurred before the Court. This
sum included CYP 2,000 (approximately EUR 3,417) for the costs of the
expert report assessing the value of his properties. On 25 November
2002, the applicant submitted additional bills of costs from his
lawyer, amounting to CYP 734.5 (approximately EUR 1,254). On
15 January 2004, he claimed additional expenses amounting to CYP
2,645 (approximately EUR 4,519). In his updated claims for just
satisfaction of 24 January 2008, the applicant submitted
additional bills of costs for the new valuation report and for legal
fees amounting to CYP 2,000 (approximately EUR 3,417) plus
V.A.T. and EUR 2,955.5 (including V.A.T.) respectively. The
total sum claimed under this head was thus approximately EUR 20,041.
Finally, on 26 May 2010 the applicant submitted that his further
legal fees and expert report's costs amounted to EUR 2,955.5 and EUR
10,250 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 and decides to award
a total sum of EUR 8,000.
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 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
350,000 (three hundred and fifty 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
