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LOIZOU AND OTHERS v. TURKEY - 16682/90 [2011] ECHR 818 (24 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/818.html
Cite as:
[2011] ECHR 818
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FOURTH
SECTION
CASE OF
LOIZOU AND OTHERS v. TURKEY
(Application
no. 16682/90)
FINAL
JUDGMENT
(Just
Satisfaction)
STRASBOURG
24 May
2011
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 Loizou and Others v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Işıl
Karakaş,
Ledi Bianku, judges,
and
Fatoş Aracı,
Deputy Registrar,
Having
deliberated in private on 3 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 16682/90) 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 twenty-six Cypriot nationals and three
registered companies, on 26 January 1990.
In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court held that the administrator of the estate
of applicant no. 9 had standing to continue the present
proceedings in the deceased’s stead, decided to strike the
application out of the list of cases in so far as it concerned
applicants nos. 18 to 29 and to continue the examination of the
application with regard to applicants nos. 1 to 17. The Court further
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
applicants nos. 1, 2, 3, 4, 7, 8, 9, 10, 12, 16 and 17 to respect for
their homes and of Article 1 of Protocol No. 1 to the Convention by
virtue of the fact that applicants nos. 1 to 17 were denied access to
and control, use and enjoyment of their properties as well as any
compensation for the interference with their property rights.
Finally, it found that it was not necessary to examine the
applicants’ complaints under Articles 1 and 14 of the
Convention and the complaint of applicant no. 14 under Article 8
of the Convention (see Loizou and Others v. Turkey,
no. 16682/90, §§ 47, 52, 53, 59, 60, 76, 83, 89
and 92, and points 1-8 of the operative provisions, 22 September
2009).
Under
Article 41 of the Convention the applicants sought just satisfaction
for the deprivation of their properties concerning the period between
January 1987 and 1999. Several valuation reports, setting out the
basis of their loss, were appended to their observations.
Furthermore, the applicants claimed approximately 68,344 euros (EUR)
each for non-pecuniary damage and a sum 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., §§
120 and 123, and point 9 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 also 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 submitted observations on these
matters. On 21 June 2010 some of the applicants produced certificates
of ownership of Turkish-occupied immovable properties issued by the
Department of Lands and Surveys of the Republic of Cyprus. In
particular, it appears from these documents that in April and May
2010 the building sites and fields described in paragraphs 13 and 14
below were still registered in the name of applicant no. 9
(Mr Kostas Kalisperas), with the exception of the plot of land
described in paragraph 14 (p) below, on which his house was located.
This plot was registered in the name of a company, Georgike
Epichrisis Kalisperas Ltd.
In
a judgment delivered on 26 October 2010 (“the partial judgment
on just satisfaction”) the Court dismissed the Government’s
request to stay the examination of the applicants’ claims for
just satisfaction, awarded various sums in respect of pecuniary and
non-pecuniary damage to applicants nos. 1 to 8 and 10 to 17, held
that the respondent State should pay EUR 15,000 in respect of the
costs and expenses incurred by all the applicants, and dismissed the
remainder of the claims for just satisfaction of applicants nos. 1 to
8 and 10 to 17 (see Loizou and Others v. Turkey (partial
judgment – just satisfaction), no. 16682/90, §§ 7-11
and 45-51, and points 1-3 of the operative provisions,
26 October 2010). The Court furthermore noted that in respect of
applicant no. 9 the expert appointed by the authorities of the
“TRNC” had indicated the open-market value of only one of
the properties concerned by the principal judgment and had failed to
give any estimate of the sums which might have been offered by the
Immovable Property Commission (hereinafter “the IPC”).
The Court therefore held that the question of application of Article
41 in respect of the pecuniary and non-pecuniary damage suffered by
applicant no. 9 was not ready for decision; it further
reserved the said question and invited the Government to submit,
within four weeks, their estimates of the 1974 open-market values of
all the properties of applicant no. 9 and of the sums which
the IPC might have offered to the administrator of his estate under
the heads of loss of use and current value of the properties (see
Loizou and Others v. Turkey (partial judgment –
just satisfaction), cited above, §§ 52-53, and point 4
of the operative provisions).
The
Government submitted their observations on these points on
21 December 2010. The administrator of the estate of applicant
no. 9 submitted comments on 31 January 2011.
THE LAW
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) Applicant no. 9
In
his just satisfaction claims of September 1999, applicant no. 9
(Mr Kostas Kalisperas – hereinafter “the applicant”)
requested an award in respect of pecuniary damage. He relied on an
expert 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 date of payment. The rent claimed was for
the period from January 1987, when the respondent Government accepted
the right of individual petition, until 1999. The applicant did not
claim compensation for any purported expropriation, since he was
still the legal owner of the properties.
The
starting point of the valuation report was the rental value of the
properties in 1974, calculated on the basis of a percentage of their
market value or assessed by comparing the rental value of similar
land at the relevant time. This sum was subsequently adjusted upwards
by applying an average annual
rental increase varying between 5% and 12%. Compound interest for
delayed payment was applied at a rate of 8% per annum.
In
1999 the applicant sought 1,999,447 Cypriot pounds (CYP,
approximately EUR 3,416,255). According to the expert appointed
by him, the overall 1974 market values of the six building sites
mentioned in paragraph 13 above (three of which had a total area of
2,008 sq. m) was CYP 78,614 (approximately EUR 134,319), while
their total rental value was CYP 4,716 (approximately EUR
8,058). The 1974 annual rent obtainable from the fields described in
paragraph 14 above was CYP 14,688 (approximately EUR 28,513),
while the 1974 market value of the applicant’s house (Pano
Dikomo, plot no. 18, sheet/plan XII/54W1, registration no.
825) was CYP 19,600 (approximately EUR 33,488) and its rental
value was CYP 1,087 (approximately EUR 1,857).
According
to the certificates of affirmation of ownership of Turkish-occupied
immovable properties produced in June 2010 by the administrator of
the applicant’s estate (see paragraph 6 above), the six
building sites owned by Mr Kostas Kalisperas were registered as
follows:
(a) Kyrenia/Vasilia,
sheet/plan 11/05, plot no. 496 (previous 140/10), registration
no. 5642; building site; share: whole; area: 799 sq. m;
(b) Kyrenia/Vasilia,
sheet/plan 11/05, plot no. 497 (previous 140/11), registration
no. 5643; building site; share: whole; area: 725 sq. m;
(c) Kyrenia/Vasilia,
sheet/plan 11/05, plot no. 520 (previous 140/34), registration
no. 5666; building site; share: whole; area: 484 sq. m;
(d) Kyrenia/Pano
Kyrenia, sheet/plan 12/21, block 6; plot no. 50; registration no.
3741; building site; share: whole; area: not indicated;
(e) Kyrenia/Pano
Kyrenia, sheet/plan 12/21, block 6; plot no. 60; registration no.
3747; building site; share: whole; area: not indicated;
(f) Kyrenia/Pano
Kyrenia, sheet/plan 12/21, block 6; plot no. 61; registration no.
3748; building site; share: whole; area: not indicated.
The
fields owned by the applicant were registered as follows (as
indicated in paragraph 6 above, the field referred to under (p) was
registered in the name of the company Georgike Epichrisis Kalisperas
Ltd):
(a) Kyrenia/Kato
Dikomo, sheet/plan: 21/04, plot no. 59; registration no. 1719;
field; share: whole; area: 74,249 sq. m;
(b) Kyrenia/Kato
Dikomo, sheet/plan: 21/04, plot no. 233 (previous 20 21 53 54);
registration no. 1693; field; share: whole; area: 76,255 sq. m;
(c) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 3; registration no. 2088;
field; share: whole; area: 18,730 sq. m;
(d) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 22; registration no. 2107;
field; share: whole; area: 1,338 sq. m;
(e) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 23; registration no. 2108;
field; share: whole; area: 2,007 sq.m;
(f) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 24; registration no. 2109;
field; share: whole; area: 2,342 sq. m;
(g) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 26; registration no. 2111;
field; share: whole; area: 632 sq. m;
(h) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 21; registration no. 2106;
field; share: whole; area: 1,673 sq. m;
(i) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 30; registration no. 2115;
field; share: whole; area: 6,021 sq. m;
(j) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 32; registration no. 2117;
field; share: whole; area: 28,094 sq. m;
(k) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 33; registration no. 2118;
field; share: whole; area: 4,014 sq. m;
(l) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 10; registration no. 2095;
field; share: whole; area: 17,726 sq. m²;
(m) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 25; registration no. 2110;
field; share: whole; area: 920 sq. m;
(n) Kyrenia/Kato
Dikomo, sheet/plan: 21/13, plot no. 20; registration no. 2105;
field; share: whole; area: 37,125 sq. m;
(o) Kyrenia/Kato
Dikomo, sheet/plan: 21/05, plot no. 72; registration no. 1857;
field; share: two-thirds; area: 28,429 sq. m;
(p) Kyrenia/Pato
Dikomo, sheet/plan: 12/54, plot no. 18; registration no. 825;
field; share: whole; area: 8,696 sq. m;
(q)
Kyrenia/Sichari, sheet/plan: 12/54, plot no. 315; new reference
no. 0/282; field; share: whole; area: 1,221 sq. m;
(r) Kyrenia/Sichari,
sheet/plan: 12/54, plot no. 251; registration no. 267; field and
trees; share: whole; area: 6,689 sq. m;
(s) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 10/62E1+2, plot no. 35, registration no.
F34; field; share: 1948634/40642560; area: 226 sq. m;
(t) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 10/63W1+2, plot no. 3, registration no.
G3; field; share: 1948634/40642560; area: 987 sq. m;
(u) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 19/7E1+2, plot no. 6, registration no. K8;
field; share: 1948634/40642560; area: 738 sq. m;
(v) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 19/8W1, plot no. 23, registration no. L22;
field; share: 1948634/40642560; area: 586 sq. m;
(w) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 19/8E1, plot no. 26, registration no. M25;
field; share: 1948634/40642560; area: 622 sq. m;
(x) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 10/64E2, plot no. 142, registration no.
M127; field; share: 1948634/40642560; area: 331 sq. m;
(y) Nicosia/Morphou/Ayios
Georgios, sheet/plan: 19/BE1, plot no. 150, registration no.
M135; field; share: 1948634/40642560; area: 420 sq. m;
(z) Nicosia/Kythrea/Ayios
Georgios, sheet/plan: 22/3W1, plot no. 63; registration no. 2/111;
field; share: whole; area: 25419 sq. m..
The
Court was informed that the applicant had died on 14 September 2003.
It held that the administrator of his estate (his granddaughter,
Mrs Melita Theodoridou) had standing to continue the proceedings
in his stead (see paragraph 2 above). In a letter of 28 January 2008
the latter observed that a long period had passed since Mr
Kalisperas’ first claims for just satisfaction and that the
claim for pecuniary loss needed to be updated according to data
concerning the increase in market value of the land in Cyprus. The
average increase in this respect was 10% to 15% per annum.
On
21 June 2010 the administrator of the applicant’s estate
produced a revised valuation report, which was meant to cover the
loss of use for the period between 1 January 1987 and June 2010.
On the basis of the criteria used in the previous report, the expert
appointed by Mrs Melita Theodoridou considered that the sum due for
loss of use was EUR 12,082,000.
The
expert submitted various synoptic tables showing sales of comparable
plots in the areas where the properties concerned by the principal
judgment were located. He alleged that, in general, these sales
showed that both the 1974 prices of the properties and the annual
increase in their values, as estimated in the previous report, were
fair and reasonable.
In
his just satisfaction claims of September 1999, the applicant further
claimed CYP 40,000 (approximately EUR 68,344) in respect of
non-pecuniary damage. 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) while taking into account
the fact that the period in respect of which the claim was made in
the instant case was longer. He also claimed the additional sum of
CYP 70,000 (approximately EUR 119,602) with respect to the
non-pecuniary damage suffered for the loss of his home.
In
her comments of 31 January 2011, the administrator of the applicant’s
estate underlined that for each and every property concerned by the
principal judgment she had produced either the original title deed or
affirmations of ownership of Turkish-occupied immovable properties,
showing that Mr Kostas Kalisperas was the owner of the relevant
plots. The Government had failed to produce evidence to the contrary.
In any event, the objections of incompatibility ratione materiae
with the provisions of Article 1 of Protocol No. 1 raised by the
Government had been rejected by the Court in the principal judgment.
The administrator of the applicant’s estate further produced a
copy of a contract, dated 16 July 1968, by which Mr Kostas Kalisperas
had purchased the land described in paragraph 14 (q) above; she also
stated that the company which owned the plot described in paragraph
14 (p) above (Georgike Epichrisis Kalisperas Ltd) was the applicant’s
company. The mortgages which, according to the Government, restricted
the properties described in paragraph 13 (c), (d), (e) and (f) above
(see paragraph 29 below) had been suspended and declared
uncollectable according to the provisions of the Debtors’
Relief Act 1974 by an order of the Nicosia District Court. A copy of
this order was annexed to the comments of the administrator of the
applicant’s estate. She finally considered that the valuations
furnished by the IPC were a “shot in the dark” based on
biased and incomplete reports.
(b) The Government
The
Government submitted comments on the applicant’s claims for
just satisfaction on 15 September 2008, 22 June and 21 December 2010.
They noted that owing
to the lapse of time since the lodging of the application new
situations might have arisen; these matters could be certified only
by the Greek Cypriot authorities, who, since 1974, had reconstructed
the registers and records of all properties in northern Cyprus and
had, since 1968, been in possession of the Lands Records Registers
relating to the Morphou region and to some areas of Nicosia. The
administrator of the applicant’s estate should be required to
provide search certificates issued by the Department of Lands and
Surveys of the Republic of Cyprus. Moreover, in cases like the
present one, where the original applicant had passed
away, questions might arise as to whether the new owners had a legal
interest in the properties and whether they were entitled to
pecuniary and/or non-pecuniary damages.
The
Government further observed that the applicant had some shared
properties and that it was not proven that his co-owners had agreed
to the partition of the possessions. Nor, when claiming damages on
the basis of the assumption that the properties had been rented after
1974, had the applicant shown that the rights of the said co-owners
under domestic law had been respected.
In
their comments of 22 June 2010 the Government observed that in the
case of 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) 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
administrator of the applicant’s estate to apply to the IPC,
which would calculate the current value and the 1974 value of the
properties “in an evidence-based manner on the basis of 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 noted 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 regards
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 applicant and the Greek Cypriot
authorities to assess the market values of the properties in a
realistic and reliable manner. The applicant had put forward
exaggerated claims and had tended to inflate the 1974 value of his
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 “evidence-based and objective
in every aspect”.
In
June 2010, the expert appointed by the authorities of the “TRNC”
indicated that the 1974 open-market value of one of the applicant’s
properties was CYP 195 (approximately EUR 333). No estimate was given
for the other properties. The “TRNC” authorities also
failed to indicate the sums which the IPC could have offered the
applicant’s heirs to compensate for loss of use and for the
value of the properties.
On
21 December 2010 the Government observed that no pecuniary damage for
loss of use could be awarded for the time which had elapsed since the
applicant’s demise. They further pointed out that the “TRNC”
Ministry of the Interior did not have the Land Office registries for
certain areas of Nicosia and for the whole of Morphou, and had
therefore not been able to verify whether the properties described in
paragraph 14 (a), (d), (e), (f), (g), (h), (k), (l), (m), (n), (o),
(p), (t) and (z) above were owned by the applicant in 1974. The IPC
nevertheless made an offer in respect of these properties; the said
offer was however conditional on the production of further proofs of
ownership.
The
Government noted that the applicant’s representative had
produced written evidence showing that in 2010 his client was still
the owner of twenty-one plots of land. It was not clear whether the
remaining properties had been transferred to his heirs or to third
persons. The IPC assumed that no transferral had been made before 15
June 2004, on which date the Court was informed of the applicant’s
demise. Moreover, the “TRNC” authorities had determined
that in 1974 the applicant was not the owner of the fields described
in paragraph 14 (p) (which belonged to a company, Eferia Yeorghikae
Epihiris Xalisperas Ltd.) and (q) (which belonged to a certain Petrou
Yeorgion Filippou) above. Therefore, in the Government’s
opinion no compensation should be awarded for these two plots.
The
Government also pointed out that before 1974 the properties described
in paragraph 13 (c), (d), (e) and (f) above were restricted under
mortgage and argued that the administrator of the applicant’s
estate should prove that these mortgages had been paid and lifted.
Attached
to their observations of 21 December 2010, the Government produced a
fresh report from the “TRNC” authorities, in which it was
indicated that it would be possible to envisage, either immediately
or after the resolution of the Cyprus problem, restitution of the
properties described in paragraph 14 (a), (d), (e), (f), (g), (h),
(k), (l), (m), (n), (o), (p), (t) and (z) above. The IPC could also
offer the administrator of the applicant’s estate exchange of
some of the properties concerned by the principal judgment with
Turkish-Cypriot properties located in the south of the buffer zone.
Had
the administrator of the applicant’s estate applied to the IPC,
the latter would have offered EUR 1,202,556.22 to compensate for the
loss of use, and EUR 1,561,470.92 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:
-
properties described in paragraph 13 (a), (b) and (c) above: CYP
2,250 (approximately EUR 3,844) each;
-
property described in paragraph 13 (d) above: CYP 5,000
(approximately EUR 8,543);
-
properties described in paragraph 13 (e) and (f) above: CYP 4,000
(approximately EUR 6,834) each;
-
property described in paragraph 14 (a) above: CYP 1,665
(approximately EUR 2,845);
-
property described in paragraph 14 (b) above: CYP 1,710
(approximately EUR 2,922);
-
property described in paragraph 14 (c) above: CYP 420 (approximately
EUR 718);
-
property described in paragraph 14 (d) above: CYP 30 (approximately
EUR 51);
-
property described in paragraph 14 (e) above: CYP 45 (approximately
EUR 77);
-
property described in paragraph 14 (f) above: CYP 52 (approximately
EUR 89);
-
property described in paragraph 14 (g) above: CYP 15 (approximately
EUR 25);
-
property described in paragraph 14 (h) above: CYP 40 (approximately
EUR 68);
-
property described in paragraph 14 (i) above: CYP 135 (approximately
EUR 231);
-
property described in paragraph 14 (j) above: CYP 630 (approximately
EUR 1,076);
-
property described in paragraph 14 (k) above: CYP 90 (approximately
EUR 154);
-
property described in paragraph 14 (l) above: CYP 400 (approximately
EUR 683);
-
property described in paragraph 14 (m) above: CYP 25 (approximately
EUR 43);
-
property described in paragraph 14 (n) above: CYP 832 (approximately
EUR 1,421);
-
property described in paragraph 14 (o) above: CYP 42.40
(approximately EUR 72);
-
property described in paragraph 14 (p) above: CYP 195 (approximately
EUR 333);
-
property described in paragraph 14 (q) above: CYP 100 (approximately
EUR 170);
-
property described in paragraph 14 (r) above: CYP 500 (approximately
EUR 854);
-
properties described in paragraph 14 (s), (t), (u), (v), (w), (x),
(y) and (z) above: CYP 30 (approximately EUR 51) “per donum”
(unit of area used in the Ottoman Empire and normally corresponding
to “forty standard paces in length and
breadth”).
It
follows that according to the “TRNC” authorities, the
overall 1974 market value of the applicant’s properties was
close to EUR 45,575 (this sum does not include the properties whose
value was determined “per donum”). The Government finally
stressed that the IPC proposal should be assessed in view of the
principles laid out in the Grand Chamber’s decision in the case
of Demopoulos and Others, cited above.
2. The Court’s assessment
The
Court reiterates that it has concluded that there had been a
continuing violation of the applicant’s rights guaranteed by
Article 1 of Protocol No. 1 by reason of the complete denial of his
right to the peaceful enjoyment of his properties in northern Cyprus
(see paragraph 76 of the principal judgment). There had also been a
continuing violation of Article 8 of the Convention by reason of
the denial of the applicant’s right to respect for his home
(see paragraph 89 of the principal judgment). Furthermore, the
Court’s 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
possibility of using and enjoying his properties (see paragraph 74 of
the principal judgment). The administrator of his estate is therefore
entitled to a measure of compensation in respect of losses directly
related to this violation of the applicant’s 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 day of Mr Kostas Kalisperas’
death, namely 14 September 2003 (see paragraph 15 above; see
also, mutatis mutandis, Cankoçak v. Turkey,
nos. 25182/94 and 26956/95, § 26, 20 February 2001, and
Sophia Andreou v. Turkey (just satisfaction), no. 18360/91, §
32, 22 June 2010).
In
connection with this, the Court notes that the administrator of the
applicant’s estate has not introduced an autonomous claim
concerning a potential violation of the property rights which the
successors of Mr Kostas Kalisperas might have acquired after his
death, but has merely successfully requested to pursue the
application lodged by the deceased (see paragraph 2 above, paragraphs
46 and 47 of the principal judgment and point 1 of its operative
provisions). Under these circumstances, no alleged pecuniary damage
for loss of use can be awarded for the time which has elapsed after
the applicant’s demise (see, mutatis mutandis, Sophia
Andreou (just satisfaction), cited above, § 33, and
Solomonides v. Turkey (just satisfaction), no. 16161/90, §
43, 27 July 2010). It is also to be noted that the documents produced
by the administrator of the applicant’s estate (see paragraph 6
above) show that in April and May 2010 the building sites and fields
described in paragraphs 13 and 14 above were still registered in the
name of Mr Kostas Kalisperas, with the sole exception of the plot of
land on which his house was located (described in paragraph 14 (p)
above), which was registered in the name of the company Georgike
Epichrisis Kalisperas Ltd. The administrator of the applicant’s
estate has stated that this company belonged to the applicant (see
paragraph 19 above), and no evidence to the contrary has been
produced by the Government.
As
to the Government’s contention that in 1974 the field described
in paragraph 14 (q) above was not registered in the applicant’s
name (see paragraph 28 above), the Court observes that the documents
produced by the administrator of his estate in 2010 (see paragraph 6
above) show that the plot of land at issue was transferred to the
applicant at some point in time before his death. In any event, it
should be remembered that the objections of incompatibility ratione
materiae with the provisions of Article 1 of Protocol No. 1
raised by the Government in respect of the properties concerned by
the present application (including those of Mr Kostas Kalisperas)
have been rejected by the Court (see paragraphs 72 and 119 of the
principal judgment).
The
Court has also taken note of the fact that the Government alleged
that before 1974 the properties described in paragraph 13 (c), (d),
(e) and (f) above were restricted under mortgage (see paragraph 29
above); however, the administrator of the applicant’s estate
produced evidence showing that these mortgages had been suspended and
declared uncollectable by the Nicosia District Court (see paragraph
19 above).
In
the opinion of the Court, the valuations furnished by the
administrator of the applicant’s estate 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 the administrator
of his estate (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 v. Turkey
(just satisfaction), no. 16219/90, § 23, 22 April 2008).
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 in response to its request to submit material
relevant to assessing the 1974 market value of the applicant’s
properties, the Government have relied on the accuracy of the IPC’s
calculations (see paragraphs 22, 24, 25, 31 and 32 above), while the
administrator of the applicant’s estate has referred to several
sales of comparable plots in the areas where the properties concerned
by the principal judgment were located (see paragraph 17 above).
The
Court further observes that the administrator of the applicant’s
estate 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 the
administrator of his estate 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,
until his death, the applicant must have experienced over the years
in not being able to use his property 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 administrator of the applicant’s estate
in respect of pecuniary and non-pecuniary damage (respectively
EUR 12,082,000 and EUR 187,946 – see paragraphs 16 and 18
above) are manifestly excessive. The Court considers that the amount
which, according to the Government, the IPC could have offered in
respect of loss of use (approximately EUR 1,202,556.22 – see
paragraph 31 above) constitutes a fair basis for compensating the
damage sustained by the applicant. Making its assessment on an
equitable basis, the Court decides to award EUR 1,300,000
under the head of pecuniary and non-pecuniary
damage.
B. Costs and expenses
Attached
to his comments of 31 January 2011, the applicant’s
representative produced a “pro-forma invoice” claiming
EUR 3,450 for “studying 1999 and 2010 observations and
valuation reports, preparation of observations in reply”.
The
Court would state that, having regard to the fact that the legal
issues raised by the application were similar for all the applicants,
it has decided to award the total sum of EUR 15,000 to all of them
(see paragraph 58 of the partial judgment on just satisfaction).
This sum should be considered as covering the legal costs incurred by
all the applicants. Therefore, no further award should be made under
the head of costs and expenses.
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
Holds
(a) that
the respondent State is to pay the administrator of the estate of
applicant no. 9 (Mr Kostas Kalisperas), within three months of the
date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,300,000
(one million three hundred thousand euros) in respect of pecuniary
and non-pecuniary damage, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 claim for just
satisfaction of applicant no. 9.
Done in English, and notified in writing on 24 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
