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EVAGOROU CHRISTOU v. TURKEY - 18403/91 [2010] ECHR 966 (22 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/966.html
Cite as:
[2010] ECHR 966
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FOURTH
SECTION
CASE OF EVAGOROU CHRISTOU v. TURKEY
(Application
no. 18403/91)
JUDGMENT
(just
satisfaction)
STRASBOURG
22
June 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 Evagorou Christou v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Işıl
Karakaş, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having deliberated in private on 1 June
2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 18403/91) 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 Anna Evagorou Christou
(“the applicant”), on 31 May 1991.
In
a judgment delivered on 27 January 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 her 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 her
property 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 Articles 1 and 14 of the
Convention (Evagorou Christou v. Turkey, no. 18403/91, §§
14, 26, 36 and 39, and points 1-4 of the operative provisions, 27
January 2009).
Under
Article 41 of the Convention the applicant sought just satisfaction
of 740,368 Cypriot pounds (CYP –
approximately 1,264,993 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
31 December 2007. Two valuation reports, setting out the basis of the
applicant's loss, were appended to her observations. Furthermore, the
applicant claimed CYP 230,000 (approximately EUR 392,978) in
respect of non-pecuniary damage and approximately EUR 14,910 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., §§
54 and 57, and point 5 of the operative provisions).
On
13 July 2009 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 and the Government each filed comments on this matter.
On
4 September 2009 the applicant was invited to submit written
evidence that the properties at stake were still registered in the
name of her children or to indicate and substantiate any transfer of
ownership which might have taken place.
On
5 October 2009 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 transpired from these
documents that on 6 April 2009 the properties described in paragraph
15 above were registered in the name of the applicant's children (Mrs
Maria Papakosta, Mr Xristakis Christou and Mr Achilleas
Christou). It was mentioned that the applicant had a “life
interest” (usufruct) over the properties. According to an
affidavit signed by the applicant, the life interest at issue, not
declared to the Land Registration Office at the date of the transfer
of the properties (7 September 1999), had been brought to the
attention of the authorities and officially registered only on 17
February 2009.
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.
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 14 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 19 November 1999, the applicant
requested CYP 236,004 (approximately EUR 403,236) for pecuniary
damage. She relied on an expert's report assessing the value of her
losses which included the loss of annual rent collected or expected
to be collected from renting out her plots of lands and her two
houses in Kalogrea (registered under plot no. 45; total area: 776
square metres (m²)) and Roukania (registered under plot number
119/6; area: m² 195), plus interest from the date on which
such rents were due until the day of payment. The applicant's fields
could be described as follows (see paragraph 10 of the principal
judgment):
(a) plot
no. 260; area: m² 4,683;
(b)
plot no. 268; area: m² 7,358;
(c)
plot no. 119/5; area: m² 1,431;
(d) plot
no. 164.9; area: m² 8,450;
(e) plot
no. 121/2/3; area: m² 1,338;
(f) plot
no. 122/2/4; area: m² 2,472;
(g) plot
no. 359/1; area: m² 5,017;
(h) plot
no. 425; area: m² 13,713.
The
rent claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until January 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 Kalogrea
village and of the applicant's properties.
The
valuation report calculated the annual rent obtainable from the
applicant's properties as a percentage (ranging from 4 to 6 percent)
of their market value in 1974. In particular, the house where the
applicant had permanently resided had a value of CYP 7,928
(approximately EUR 13,545), while her summer place was worth CYP
6,924 (approximately EUR 11,830). In 1974, the annual rent was CYP
317 (approximately EUR 541) for the first house and CYP 277
(approximately EUR 473) for the second one. The total rent obtainable
in 1974 from the applicant's fields was estimated at CYP 1,324
(approximately EUR 2,262). The expert further took into account the
trends in rent increase (an average of 5% per annum). Moreover,
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
developments in the case, the applicant submitted updated claims for
just satisfaction, which were meant to cover the period of loss of
use of the property from 1 January 1987 to 31 December 2007. She
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 394,254 plus CYP 346,113 for
interest. The total sum claimed under this head was thus CYP 740,368
(approximately EUR 1,264,993).
On
5 October 2009 the applicant requested the additional sum of EUR
140,796.34 for the loss of use of her properties for the years 2008
and 2009. Her claim for pecuniary damage was thus risen up to
approximately EUR 1,405,789.
The
applicant further submitted that due to her age in 1999 she had
transferred her properties to her children (see paragraph 9 of the
principal judgment). While her intention and the intention of her
children was to preserve a life interest in her favour, due to
ignorance this had not been declared at the Land Registration Office.
This failure was corrected on 17 February 2009 and the Land
Registration Office issued new certificates in the name of her
children containing a specific reference to Mrs Anna Evagorou
Christou's life interest (see paragraph 8 above).
In
her just satisfaction claims of 19 November 1999, the applicant
claimed CYP 180,000 (approximately EUR 307,548) in respect of
non-pecuniary damage. In particular, she claimed CYP 30,000 for the
anguish and frustration suffered on account of the continuing
violation of her property rights. She stated that this sum had been
calculated on the basis of the sum awarded by the Court in the
Loizidou 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. Further the applicant claimed CYP 90,000
for the distress and suffering she had been subjected to due to the
denial of her home. She considered this to be more serious than the
violation of her property rights. She also requested CYP 60,000 for
the violation of her rights under Article 14 of the Convention.
Finally,
in her updated claims for just satisfaction of 24 January 2008, the
applicant requested an additional EUR 50,000 for non-pecuniary
damage.
(b) The Government
The
Government filed comments on the applicant's updated claims for just
satisfaction on 30 June 2008, 15 October 2008 and 6 October 2009.
They pointed out that the present application was part of a cluster
of similar cases raising a number of problematic issues and 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 it
would be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the pieces of lands
registered under the plots no. 260, 268, 119/5, 119/6, 359/1 and 425
(see paragraph 15 above). 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 7 September 1999 (date on
which the applicant transferred her properties to her children –
see paragraphs 8 and 20 above and paragraph 9 of the principal
judgment).
Had
the applicant applied to the IPC, the latter would have offered
CYP 98,377.12 (approximately EUR 168,087) to compensate the loss
of use and CYP 238,849.23 (approximately EUR 408,097) 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
applicant's properties was CYP 10,225 (approximately 17,470 EUR).
Upon fulfilment of certain conditions, the IPC could also have
offered the applicant exchange of her properties with Turkish-Cypriot
properties located in the south of the island.
In
their comments of 6 October 2009 the Government noted that the
applicant had claimed compensation also for the period after
September 1999, when she was not anymore the owner of the properties
and argued that the offer made by the IPC would constitute a fair and
just compensation.
The
Government further observed 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.
It
could therefore be said that the IPC had used the same criteria as
the Greek-Cypriots applicants. However, being in possession of the
land registers in which comparable sales had been recorded, it was
better placed to assess the 1974 market values of the properties.
Applicants had, in general, tended to exaggerate and inflate these
values. Their calculations were highly presumptive; for instance, the
percentage used for assessing the loss of income had frequently been
the same for buildings, fields, orchards and plots of land,
irrespective of their location, of the existence of electricity or
water supplies and of an access to a minor or major road. On the
contrary, the Turkish-Cypriot authorities had taken all these factors
into consideration; they had applied a higher percentage for
buildings in built-up areas than for vacant fields.
The
Government also insisted that, as it could not be excluded that the
properties at issue had been transferred within the legal system of
southern Cyprus, applicants should be required to provide search
certificates issued by the Greek-Cypriot Department of Lands and
Surveys. Failure to substantiate title to the properties at the
material time and at the time of the Court's judgment should be
considered as a failure to cooperate with the Court. No just
satisfaction should be awarded in respect to unsubstantiated or
dubious claims.
After
the delivery of the Court's principal judgment, the Turkish-Cypriot
authorities had invited the applicant to apply to the IPC in order to
reach an agreement on the matter of compensation. The applicant had
not replied to this invitation. This attitude was mainly due to
political reasons and to the pressures exerted by the Greek-Cypriot
authorities in order to discourage their citizens from applying to
the IPC. Misleading information had been given about its powers and
the Greek-Cypriots who had applied to it had been questioned by the
Office of the Attorney General. In 2006 the Greek-Cypriot media had
even revealed a “shame list” and published the names of
applicants to the IPC.
Finally,
the Government noted that the amount claimed by the applicant for
non-pecuniary damage was incompatible with the case-law and practice
of the Court.
2. The Court's assessment
The
Court recalls that in its principal judgment 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 virtue of the complete denial of the applicant's
rights with respect to her home and the peaceful enjoyment of her
properties in northern Cyprus (see paragraphs 36 and 26 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, the applicant had effectively lost all access and control as
well as all possibilities to use and enjoy her properties (see
paragraph 24 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 the deposit of
Turkey's declaration recognising the right of individual petition
under former Article 25 of the Convention, namely 22 January
1987, until 7 September 1999, when she transferred her
properties to her children (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 notes that the affirmations of
ownership of Turkish-occupied immovable properties produced by the
applicant (see paragraph 8 above) show that on 6 April 2009 her
children were still the owners of the properties described in
paragraph 15 above. A “life interest” in favour of the
applicant was not mentioned in official documents until February 2009
(see paragraphs 8 and 20 above); under these circumstances, the Court
considers that it cannot be taken into consideration in assessing the
pecuniary damage suffered by Mrs Evagorou Christou.
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 v. Turkey (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 (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 27-29 above), while the applicant has insisted on the
valuation scales adopted by the expert appointed by her.
The
Court further notes 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, the applicant has calculated the loss of rents until
the end of 2009, and not until 7 September 1999, date on which
she has transferred her properties to her children (see paragraphs 33
and 34 above).
Finally,
the Court considers 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 and enjoy her 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 sum which, according to the Government, the IPC could have
offered the applicant in respect of loss of use (approximately
EUR 168,087 – see paragraph 26 above) constitutes a fair
basis for compensating the damage sustained by Mrs Evagorou Christou.
Making its assessment on an equitable basis, the Court decides to
award EUR 170,000
under the head of pecuniary and non-pecuniary
damage.
B. Costs and expenses
In
her just satisfaction claims of 19 November 1999, relying on bills
from her representative, the applicant sought CYP 3,207
(approximately EUR 5,480) for the costs and expenses incurred in the
proceedings before the Court. This sum included CYP 900
(approximately EUR 1,537) for the cost of the expert report assessing
the value of her properties. In her written observations of 15
January 2004 the applicant claimed additional legal fees for CYP
2,645 (approximately EUR 4,519). In her updated claims for just
satisfaction of 24 January 2008 she submitted additional bills
of costs for the new valuation report and for legal fees amounting to
EUR 1,955 and EUR 2,955.5 respectively. The total sum
sought for cost and expenses was thus approximately EUR 14,910.
On
5 October 2009 the applicant requested the additional sum of EUR
3,317.42.
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
170,000 (one hundred and seventy 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 22 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
