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ZAVOU AND OTHERS v. TURKEY - 16654/90 [2010] ECHR 1651 (26 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1651.html
Cite as:
[2010] ECHR 1651
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FOURTH
SECTION
CASE OF ZAVOU AND OTHERS v. TURKEY
(Application
no. 16654/90)
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 Zavou 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. 16654/90) 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 thirty-seven Cypriot
nationals, on 26 January 1990.
In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court decided to strike the application out of
the list of cases as far as it concerned applicants no. 2 to 5, 7 to
14 and 17 to 36 and to continue the examination of the case with
regard to the five remaining applicants (Mrs Soula Zavou –
hereinafter, “applicant no. 1” –, Mrs Elenitsa
Chrysostomou – hereinafter, “applicant no. 2” –,
Mrs Anastasia Evangelides – hereinafter, “applicant
no. 3” –, Mrs Maro Pouyourou – hereinafter,
“applicant no. 4”, and Mrs Adriadni Evangelides –
hereinafter, “applicant no. 5”). It 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 applicants to
respect for their home and of Article 1 of Protocol No. 1 to the
Convention by virtue of the fact that 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
(Zavou and Others v. Turkey, no. 16654/90, §§ 18,
19, 28, 33, 35 and 37, and points 1-5 of the operative provisions, 22
September 2009).
Under
Article 41 of the Convention applicants nos. 1 to 4 sought just
satisfaction for the deprivation of their properties concerning the
period between January 1990 and 31 December 2007. Several valuation
reports, setting out the basis of their loss, were appended to their
observations. In particular, applicant no. 1 claimed 416,572 euros
(EUR), applicant no. 2 claimed EUR 282,213, applicant no. 3 claimed
EUR 443,804 and applicant no. 4 claimed EUR 545,201.
Furthermore, applicants nos. 1 to 4 claimed approximately EUR 239,204
each in respect of non-pecuniary damage and approximately EUR 7,200
for the costs and expenses incurred before the Court. Applicant no. 5
did not submit any claim with respect to pecuniary damage (see
paragraph 57 of the principal judgment). However, she claimed CYP
100,000 (approximately EUR 170,860) for non-pecuniary damage and
approximately EUR 5,143 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., §§
59 and 62, 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 14 June 2010 applicants nos. 1 to 4 declared 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 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 19 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 27 May 2003, applicants nos. 1 to 4
requested sums for pecuniary damage. They relied on 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 in northern Cyprus, 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 1990 until December 2003.
Applicants nos. 1 to 4 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 the
applicants' properties was then calculated as a percentage (varying
from 4 % to 5%) of their estimated value in 1974. 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 lands, the expert proceeded
on the basis of a certain annual rental value per decare (generally
between CYP 25 and CYP 35 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 (Mrs Soula Zavou), the figures given by the
expert were the following:
(a) property described in paragraph 11 (a) of the
principal judgment (Famagusta, Chrysospyliotissa, plot no. 513,
sheet/plan 33/12.4.2, block A, registration no. AO-16/10/86;
description: house; use: residence, share: whole): market value in
1974: 14,400 Cypriot Pounds (CYP – approximately EUR 24,603);
annual rent in 1974: CYP 576 (approximately EUR 984); estimated loss
plus interest: CYP 51,676 (approximately EUR 88,293);
(b) property described in paragraph 11 (b) of the
principal judgment (Famagusta, Ayios Ioannis, plot no. 320,
sheet/plan 33/12.2.3, block A, registration no. AO-16/10/86;
description: block of flats; use: commercial-rent; share: 1/5):
market value of the whole property in 1974: CYP 95,000
(approximately EUR 162,317); annual rent in 1974: CYP 4,750 (CYP
950 – approximately EUR 1,623 – for the 1/5 share
belonging to the applicant); estimated loss plus interest: CYP 85,229
(approximately EUR 145,622);
(c) property described in paragraph 11 (c) of the
principal judgment (Famagusta, Ayios Loucas, plot no. 827,
sheet/plan 33/11.W.1, block B and plot no. 51, sheet/plan
33/11.W.1, block B, registration no. BO-16/10/86; description:
orange grove; share: 3/8): rent payable in 1974 calculated on the
basis of CYP 35 per decare; rental value of the whole property in
1974: CYP 728 (CYP 273 – approximately EUR 466 – for
the 3/8 shares belonging to the applicant); estimated loss plus
interest: CYP 18,633 (approximately EUR 31,836).
Thus,
the total sum claimed by applicant no. 1 for pecuniary damage was CYP
155,538 (approximately EUR 265,752).
For
applicant no. 2 (Mrs Elenitsa Chrysostomou), the expert
considered that the 1974 market value of the property described in
paragraph 12 of the principal judgment (Famagusta, Chrysospyliotissa,
plot no. 1178, sheet/plan 33/12.6.3, block A; description: two
houses; share: ½) was CYP 29,400 (approximately EUR 50,232),
the 1974 annual rent was CYP 1,176 (approximately EUR 2,009) and the
estimated loss plus interest was CYP 105,504 (approximately
EUR 180,264).
For
applicant no. 3 (Mrs Anastasia Evangelides), the figures given
by the expert were the following:
(a) properties described in paragraph 13 (a) and (b) of
the principal judgment (Famagusta, Chrisi Akti, plot no. 691,
sheet/plan 33/21.1.IV, block A; description: house; use: residence;
share: whole; and Famagusta, Chrisi Akti, plot no. 693,
sheet/plan 33/21.1.IV, block A; description: house; use: rent; share:
whole): market value in 1974: CYP 25,700 (approximately EUR 43,911)
and CYP 13,500 (approximately EUR 23,066) respectively; 1974
total annual rent for both properties: CYP 1,568 (approximately
EUR 2,679); estimated loss plus interest: CYP 140,672
(approximately EUR 240,352);
(b) property described in paragraph 13 (c) of the
principal judgment (Famagusta, Salamis, plot no. 1885,
sheet/plan 33/3.E.1, block D; description: building site): market
value in 1974: CYP 3,000 (approximately EUR 5,125); estimated
loss plus interest: CYP 22,632 (approximately EUR 38,669).
Thus,
the total sum claimed by applicant no. 3 for pecuniary damage was CYP
163,304 (approximately EUR 279,021).
For
applicant no. 4 (Mrs Maro Pouyourou), the figures given by the
expert were the following:
(a) property described in paragraph 15 (a) of the
principal judgment: (Famagusta, Ayios Ioannis, plot no. 264,
sheet/plan 33/12.3.4, block C; description: house; use:
residence; share: whole) market value in 1974: CYP 40,000
(approximately EUR 68,344); annual rent in 1974: CYP 2,000
(approximately EUR 3,417); estimated loss plus interest: CYP
179,429 (approximately EUR 306,572);
(b) property described in paragraph 15 (b) of the
principal judgment (Famagusta, Komi Kepir, plots nos. 532 and
543, sheet/plan 7/46; description: plots of land; use: agriculture;
share: whole): rent payable in 1974 calculated on the basis of CYP 25
per decare; annual rental value in 1974: CYP 367.37
(approximately EUR 627); estimated loss plus interest:
CYP 25,071 (approximately EUR 42,836).
Thus,
the total sum claimed by applicant no. 4 for pecuniary damage was CYP
204,500 (approximately EUR 349,408).
Applicant
no. 5 (Mrs Adriadni Evangelides) did not submit any claim
pecuniary damage (see paragraph 3 above). She was the owner of the
following property (see paragraph 14 of the principal judgment):
Famagusta, Stavros, plot no. 701, sheet/plan 33/13.4.3, registration
no. SDD 626/85; description: plot of land with two houses;
use: residence; share: whole. However, on 14 June 2010 she declared
that in 1985 this property was transferred to her two children.
On
24 January 2008, following a request from the Court for an update on
the developments of the case, applicants nos. 1 to 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 416,572 for applicant
no. 1; EUR 282,213 for applicant no. 2; EUR 443,804 for
applicant no. 3; EUR 545,201 for applicant no. 4.
On
14 June 2010 the applicants produced fresh revised valuation reports,
which were meant to cover the loss of use for the period
between January 1990 and 30 June 2010. The expert appointed by
the applicants considered that the sums due to his clients for
pecuniary damage were the following: applicant no. 1: EUR
481,448; applicant no. 2: EUR 325,705; applicant no.
3: EUR 521,346; applicant no. 4: EUR 633,000.
The
expert produced synoptic tables showing comparable sales of building
sites, according to which in the period 1971-1974 the prices of
building sites in the municipal area of Famagusta town were comprised
between CYP 11.35 (approximately EUR 19.40) and CYP 46.18
(approximately EUR 79) per square metre; between 1970 and 1973,
building sites in the Ayios Loukas Quarter of Famagusta were sold for
prices comprised between CYP 2.22 (approximately EUR 3.80) and
CYP 7.61 (approximately EUR 13) per square metre. He moreover
assumed that the cost of construction of applicants' houses and
buildings was comprised between CYP 20 (approximately EUR 34.20) and
CYP 65 (approximately EUR 111) per square metre. He also applied a
“developer's factor” of 20 %. Accordingly, the
expert confirmed, in substance, the 1974 open-market values of the
applicants' properties as indicated in paragraphs 15-18 above.
In
their just satisfaction claims of 27 May 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 to 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 27 May 2003, the
Government challenged the conclusions reached by the Court in the
Loizidou v. Turkey case ((just satisfaction), 28 July
1998, Reports 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 on 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 in Cyprus; furthermore, any award made by the Court
would undermine the negotiations between the two parties. In any
event, the legal situation had changed since the adoption of the
Loizidou judgment: Greek-Cypriot were allowed to visit the
northern part of the island and to have access to remedies existing
in the “TRNC”, and a new “Law on Compensation for
Immovable Properties Located within the boundaries of the “TRNC”
had been adopted.
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
proven 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 property
to the State, thereby relinquishing title to and claims in respect of
it.
The
report prepared by the Turkish-Cypriot authorities specified that it
would be possible to envisage restitution of the properties described
in paragraphs 11 (b), 13 (a) and (b), 14 and 15 (a) of the
principal judgment. The other immovable properties referred to in the
application were possessed by refugees; 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
851,035.4 (approximately EUR 1,454,079) to compensate the loss of use
and CYP 906,468.09 (approximately EUR 1,548,791) for the value
of the properties. According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of the applicants' properties
was the following:
– applicant no. 1: property described in
paragraph 15 (a) above: CYP 16,000 (approximately EUR 27,337);
property described in paragraph 15 (b) above: CYP 1,000
(approximately EUR 1,708); property described in paragraph 15
(c) above: CYP 1,450 (approximately EUR 2,477);
– applicant no 2: property described in
paragraph 16 above: CYP 10,000 (approximately EUR 17,086);
– applicant no. 3: properties described in
paragraph 17 (a) above: CYP 35,000 (approximately EUR 59,801)
and CYP 20,000 (approximately EUR 34,172) respectively;
property described in paragraph 17 (b) above: CYP 4,000
(approximately EUR 6,834);
– applicant no. 4: property described in
paragraph 18 (a) above: CYP 30,000 (approximately EUR 51,258);
property described in paragraph 18 (b) above: CYP 670
(approximately EUR 1,144);
– applicant no. 5: property described in
paragraph 19 above: CYP 30,000 (approximately EUR 51,258).
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 some of the applicants'
properties. Had the applicants applied to the IPC, the latter would
have increased its offer up to CYP 956,842.99 (approximately
EUR 1,634,862) to compensate the loss of use and up to
CYP 980,671.93 (approximately EUR 1,675,576) 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 28 above.
In
particular, the IPC would have offered the following sums for each
applicant:
– applicant no. 1: loss of use: CYP
121,242.85 (approximately EUR 207,155); value of the properties:
CYP 123,596.50 (approximately EUR 211,177);
– applicant no. 2: loss of use: CYP 65,714.28
(approximately EUR 112,279); value of the property: CYP
66,989.97 (approximately EUR 114,459);
– applicant no. 3: loss of use: CYP
371,197.31 (approximately EUR 634,227); value of the properties:
CYP 383,657.33 (approximately EUR 655,517);
– applicant no. 4: loss of use: CYP
201,545,70 (approximately EUR 344,361); value of the properties:
CYP 205,458.23 (approximately EUR 351,046);
– applicant no. 5: loss of use: CYP
197,142.85 (approximately EUR 336,838); value of the
property: CYP 200,969.90 (approximately EUR 343,377).
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 8 of
the Convention and Article 1 of Protocol No. 1 by reason of the
complete denial of the rights of the applicants with respect to their
homes and the peaceful enjoyment of their properties in northern
Cyprus (see paragraphs 33 and 28 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 26
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).
The
Court notes that applicant no. 5 has not submitted any claim
with respect to pecuniary damage and has declared that she had
transferred her property to her children in 1985, which is before the
recognition, by Turkey, of the right of individual petition (see
paragraph 19 above). Therefore, no award can be made in her favour
under this head (see paragraph 57 of the principal judgment) or under
the head of non-pecuniary damage.
Applicants
nos. 1 to 4 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). 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 applicants nos.
1 to 4 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 (just
satisfaction), cited above, § 41). 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 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 27 and 32-33 above), while applicants
nos. 1 to 4 have produced synoptic tables showing the prices of
sales, in the period 1970-1974, of building sites in the municipal
area of Famagusta town and in the Ayios Loukas Quarter of Famagusta
(see paragraph 22 above).
The
Court further observes that applicants nos. 1 to 4 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
applicants nos. 1 to 4 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 considers that the sums
claimed by applicants nos. 1, 2 and 4 in respect of pecuniary and
non-pecuniary damage (see paragraphs 21 and 23 above) are excessive.
It also recalls that the applicants have failed to submit written
evidence of the current ownership of the properties concerned by the
principal judgment (see paragraphs 6 and 39 above). It considers that
the amount which, according to the Government, the IPC could have
offered the applicants in respect of loss of use (the global sum of
EUR 1,634,862 – see paragraphs 34-35 above) constitutes a fair
basis for compensating the damage sustained by them, having regard to
the number, location and physical characteristics of the properties
described in paragraphs 15-18 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 225,000 to
applicant no. 1; EUR 120,000 to applicant no. 2;
EUR 521,346 to
applicant no. 3; EUR 350,000 to applicant no. 4.
B. Costs and expenses
In
their just satisfaction claims of 27 May 2003, relying on bills from
their representative, the applicants sought CYP 3,010.25
(approximately EUR 5,143) each for the costs and expenses incurred
before the Court. Applicants nos. 1 to 4 also sought the
reimbursement of the costs of the expert's reports assessing the
value of their properties (amounting to CYP 402.5, 345, 460 and
402.5 respectively). In their updated claims for just satisfaction of
24 January 2008, applicants nos. 1 to 4 submitted additional
bills of costs for the new valuation reports and for legal fees
amounting to EUR 392.98 and EUR 982.45 respectively for
each of them. Finally, on 14 June 2010 applicants nos. 1 to 4
indicated that the total amount of the costs and expenses for the
proceedings before the Court was EUR 6,006.19 for each of them.
Applicant no. 5 specified that her previous legal expenses
amounted to EUR 4,539.75.
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 and 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 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) in
respect of pecuniary and non-pecuniary damage: EUR 225,000
(two hundred and twenty-five thousand euros) to applicant no.
1; EUR 120,000 (one hundred and twenty thousand euros) to
applicant no. 2; EUR 521,346 (five hundred and twenty-one
thousand three hundred and forty-six euros) to applicant no. 3;
EUR 350,000 (three hundred and fifty thousand euros) to applicant
no. 4, 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, 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 claim for just satisfaction of
applicant no. 5 and the remainder of the other 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
