British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
IOANNOU v. TURKEY - 18364/91 [2010] ECHR 967 (22 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/967.html
Cite as:
[2010] ECHR 967
[
New search]
[
Contents list]
[
Help]
FOURTH
SECTION
CASE OF
IOANNOU v. TURKEY
(Application
no. 18364/91)
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 Ioannou 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. 18364/91) 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, Mr Andreas Ioannou (“the
applicant”), on 7 June 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 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
property 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
(Ioannou v. Turkey, no. 18364/91, §§ 14, 30, 40
and 43 and points 1-4 of the operative provisions, 27 January 2009).
Under
Article 41 of the Convention the applicant sought just satisfaction
of 727,844 Cypriot pounds (CYP –
approximately 1,243,594 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 CYP 300,000 (approximately EUR 512,580) in
respect of non-pecuniary damage and EUR 7,688.5 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., §§
57 and 60, 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 his
name or to indicate and substantiate any transfer of ownership which
might have taken place.
On
30 September 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 transpires from these
documents that on 29 September 2009 the properties described in
paragraphs 15 and 16 below were registered in the name of Ioannou
Michael Andreas.
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.
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
his just satisfaction claims of 3 June 2000, the applicant requested
CYP 266,251 (approximately EUR 454,916) 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 31 December 2000. 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 the
applicant's house in Kyrenia, which comprised six rooms, a kitchen
and a bathroom and had a total area of approximately 200 square
metres (m²). It had been built in 1973 at a distance of 600
metres from the seaside with reinforced concrete frame, plastered
brick walls and pitched roof with imported tiles. It was registered
as follows (see paragraph 9 (j) of the principal judgment):
-
Kyrenia, Pano Kyrenia, house with yard (ground level), No. 7,
Demosthenous Street, sheet/plan 12/20, plot no. 34, area: 785 m²,
share: whole.
In
addition to that, the applicant was the owner of eight pieces of land
and of a freshwater spring scattered at various localities of Ayios
Amvrosios, Klepini and Ayios Epiktitos villages. They were registered
as follows (see paragraph 9 (a) – (i) of the principal
judgment):
(a) Kyrenia,
Klepini, Boumbourka, field with trees, sheet/plan 13/33, plot no. 72,
area: 2,784 m², share: whole;
(b) Kyrenia,
Ayios Epiktitos, Karamanou Quarter, field with trees, sheet/plan
12/32, plot no. 235, area: 539 m², share: whole;
(c) Kyrenia,
Ayios Amvrosios, Alakati tou Platymati, field with trees, sheet/plan
13/19, plot no. 220/2, area: 7,078 m², share: whole;
(d) Kyrenia,
Ayios Amvrosios, Vasilion, field with trees, sheet/plan 13/20, plot
no. 63, area: 3,365 m², share: whole;
(e) Kyrenia,
Ayios Amvrosios, Vasilion, field with trees, sheet/plan 13/20, plot
no. 130, area: 3,301 m², share: whole;
(f) Kyrenia,
Ayios Amvrosios, Vasilion, field with trees, sheet/plan 13/20, plot
no. 151, area: 174 m², share: whole;
(g) Kyrenia,
Ayios Amvrosios, Platanos, garden and cultivated field, sheet/plan
13/22, plot no. 524, area: 55 m², share: whole;
(h) Kyrenia,
Ayios Amvrosios, Vrysi tou Potamou, freshwater spring, sheet/plan
13/22, plot no. 608/1, share: whole;
(i) Kyrenia,
Ayios Amvrosios, Mangou, field with trees, sheet/plan 13/31,
plot no. 34, area: 3,819 m², share: whole.
The
starting point of the valuation report was the classification of the
applicant's properties in three categories: (a) the house in Kyrenia;
(b) lands with prospects and potentialities for immediate
development; (c) lands for which the immediate or foreseeable
prospects were limited to agricultural use. According to the expert,
for the properties under categories (a) and (b), the ground rent was
a percentage of 4 to 6 percent of the market value of the properties,
while for agricultural land, in 1974, the rent was between CYP 2 and
35 per decare per annum. In particular, in 1974 the applicant's house
in Kyrenia had an approximate market value of CYP 20,000
(approximately EUR 34,172), which meant an annual rent of CYP 800
(approximately EUR 1,366). The applicant's fields had, in 1974,
an approximate total market value of CYP 17,152 (approximately
EUR 29,305) and a total annual rent of CYP 1,039 (approximately
EUR 1,775) could have been obtained from them. The expert took
into account the nature of the area under study and the trends in
rent increase (an average of 12% per annum for ground rents, 7% per
annum for dry agricultural properties and 5% per annum for gardens
and houses). Compound interest for delayed payment was applied at a
rate of 8% per annum.
On
25 January 2008, following 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 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 406,334 plus CYP 321,509 for interests (the interests
applied from 2001 onwards were 6 percent per annum). The total sum
claimed under this head was thus CYP 727,844 (approximately
EUR 1,243,594).
On
30 September 2009 the applicant produced a revised valuation report,
which was meant to cover the loss of use for the period between
1 January 1987 and 31 December 2009. On the basis of the
criteria used in the previous reports, the expert appointed by the
applicant considered that the whole sum due to his client for
pecuniary damage was EUR 1,397,270.
The
expert annexed to his report 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 judgments 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. The
expert also submitted a synoptic table indicating the prices of ten
“comparable sales for properties in Kato Kyrenia and Ayios
Amvrosios”. According to this table, the 1974 value of one
square metre of building site was comprised between CYP 24.1
(approximately EUR 41) and CYP 28.7 (approximately EUR 49), while
fields could be sold for a price comprised between CYP 0.969
(approximately EUR 1.65) and CYP 1.28 (approximately EUR 2.18)
per square metre.
In
his just satisfaction claims of 3 June 2000, the applicant further
claimed CYP 300,000 (approximately EUR 512,580) in respect of
non-pecuniary damage. 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 and
that there had also been a violation of Article 8 of the Convention.
(b) The Government
22. 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 properties
described in paragraphs 15 and 16 (a), (b), (c) and (f)
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 the date of payment. Had the applicant
applied to the IPC, the latter would have offered CYP 39,115.93
(approximately EUR 66,833) to compensate the loss of use and
CYP 41,663.75 (approximately EUR 71,186) for the value of
the properties. According to an expert appointed by the authorities
of the “TRNC”, the 1974 open-market value of the
properties described in paragraphs 15 and 16 above was CYP 6,808
(approximately EUR 11,632). 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 6 October 2009 the Government noted that the amount
suggested by the IPC for loss of use would constitute a sufficient
just satisfaction for the applicant.
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 to apply 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.
The
Government finally noted that the applicant's claim in respect of
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 his home and the peaceful enjoyment of his
properties in northern Cyprus (see paragraphs 40 and 30 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, the applicant had effectively lost all access and control as
well as all possibilities to use and enjoy his properties (see
paragraph 28 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 the 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 the
documents produced by the applicant (see paragraph 8 above) show that
on 29 September 2009 he was still the owner of the properties
described in paragraphs 15 and 16 above.
However,
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 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 (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 25-27 above), while the applicant has referred to the
sale, in 1970, of comparable land. According to his expert's
assessment, this sale showed that at the relevant time the market
price of land located in Ayios Amvrosios was comprised between EUR
956 and EUR 1,913 per decare, which is between EUR 0.956 and EUR
1.913 per square metre. Moreover, according to the synoptic table
produced by the expert, in 1974 fields in the same location could be
sold for a sum comprised between EUR 1.65 and 2.18 per square
metre (see paragraph 20 above). The parties have failed to produce
any data relevant to assessing the 1974 market price of buildings.
The
Court further observes that the applicant has 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 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 his properties as he saw fit and 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 1,397,270 and EUR 512,580
– see paragraphs 19 and 21 above) are excessive. At the same
time, the amount which, according to the “TRNC”
authorities, the IPC could have offered the applicant in respect of
loss of use (approximately EUR 66,833 – see paragraph 24
above) does not seem to take due account of the number and nature of
the properties owned by the applicant and listed in paragraphs 15
and 16 above. Making its assessment on an equitable basis, the Court
decides to award the applicant EUR 250,000.
B. Costs and expenses
In
his just satisfaction claims of 3 June 2000, relying on bills from
his representative, the applicant sought CYP 3,093.89 (approximately
EUR 5,286) for the cost and expenses incurred before the Court.
This sum included CYP 700 (approximately EUR 1,196) for the cost of
the expert report assessing the value of his properties. The sum of
EUR 356.11, which the applicant had received by way of legal
aid, was deducted from the amount claimed. In his updated claims for
just satisfaction of 25 January 2008 the applicant submitted
additional bills of costs for the new valuation report and for legal
fees amounting to EUR 402.5 and EUR 2,000 respectively. The
total sum sought for cost and expenses was thus EUR 7,688.5.
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).
In
the light of the above, the Court considers the amount claimed for
cost and expenses for the proceedings before it (EUR 7,688.5)
reasonable and decides to award it to the applicant.
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
250,000 (two hundred and fifty thousand euros), plus any tax that may
be chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
7,688.5 (seven thousand six hundred and eighty-eight euros and fifty
cents), 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
