CASE OF GAVRIEL v. TURKEY

FOURTH SECTION

CASE OF GAVRIEL v. TURKEY

(Application no. 41355/98)

JUDGMENT

STRASBOURG 

20 January 2009

FINAL

06/07/2009

This judgment may be subject to editorial revision.

In the case of Gavriel 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 Lawrence Early, Section Registrar,

Having deliberated in private on 16 December 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 41355/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Savvas Gavriel (“the applicant”), on 27 March 1998.

2. The applicant was represented by Mr C. Clerides, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent, Mr Z.M. Necatigil.

3. The applicant alleged, in particular, that the Turkish occupation of the northern part of Cyprus had prevented him from having access to his home and properties.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. By a decision of 1 February 2000 the Court declared the application admissible.

6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Government of Cyprus, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)).

THE FACTS

7. The applicant was born in 1942 and lives in the United Kingdom.

8. The applicant claimed that until 14 August 1974 he and his family used to live in Morphou (Cyprus) in a detached house with a yard (area: 229 sq. m). This property was registered in the name of the applicant’s wife under plot no. 315, sheet/plan 19/32.5.2. On 14 August 1974, as the Turkish forces were advancing, the applicant and his family fled their home leaving behind all its contents, including precious personal belongings.

9. The applicant also claimed that he was the owner of the following plots of land in northern Cyprus:

(a) Nicosia/Kapouti, plot no. 576, sheet/plan 19/16, field, area: 5,017 sq. m;

(b) Kyrenia/Livera, plot no. 39/1, sheet/plan 5/62W1, field, area: 112,149 sq. m;

(c) Kyrenia/Livera, plot no. 14, sheet/plan 5/62W2, field, area: 171,549 sq. m;

(d) Kyrenia/Livera, plot no. 34, sheet/plan 5/63W1, field, area: 22,074 sq. m;

(e) Kyrenia/Livera, plot no. 45, sheet/plan 5/63W1, field, area: 11,582 sq. m.

10. In support of his claim of ownership the applicant produced the relevant certificates of registration and affirmations of ownership issued by the Republic of Cyprus.

11. The applicant alleged that from 14 August 1974 onwards he had not been able to return to his house and had been continuously prevented from exercising his property rights and enjoying his properties.

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. The Government’s objections

1. Objections of inadmissibility ratione materiae and ratione temporis

12. The Government submitted that the applicant had no title to the properties in question in view of the constitutional and legal provisions applying in the “Turkish Republic of Northern Cyprus” (the “TRNC”). As a result of the entry into force of Article 159 of the “TRNC” Constitution, these properties were no longer registered in the name of the applicant. According to the information supplied by the “TRNC” Lands and Survey Department, the property described in paragraph 9 (a) above was registered in the name of the “TRNC” as being abandoned property. The property described in paragraph 8 above had been divided into two separate plots and joined with adjacent plots; new title deeds had been issued in the name of Turkish Cypriots whose properties had been expropriated by the Greek Cypriot authorities. As to the other properties allegedly owned by the applicant in Livera, the certificate issued by the Greek-Cypriot authorities (no 9-500409 of 26 February 1992) could not be considered reliable and had in all probability been based on the information supplied by the applicant himself. In particular, the field described in paragraph 9 (c) above was not owned by the applicant in 1974 and had been given to Turkish Cypriots whose property had been expropriated by the Greek-Cypriot authorities. The field described in paragraph 9 (b) above was State property and had been declared a “forest area”. The properties described in paragraph 9 (d) and (e) above were not owned by the applicant in 1974 and were “TRNC” property. In support of their statement that in 1974 the applicant was not the owner of the fields described in paragraph 9 (c), (d) and (e) above the Government produced copies of the relevant pages of the land records.

13. The Government recalled that the occupation of northern Cyprus had taken place in 1974, and therefore before the recognition by Turkey of the compulsory jurisdiction of the Court (22 January 1990). They argued that the application should be rejected as being incompatible ratione temporis with the provisions of the Convention. Furthermore, the situation complained of was not a continuing one and there was no causal link between the 1974 Turkish military intervention and the alleged violation of the applicant’s rights after 22 January 1990.

14. In the light of all the above, the Government submitted that the application was incompatible either ratione materiae or ratione temporis.

2. Objection of inadmissibility on the grounds of non-exhaustion of domestic remedies and lack of victim status

15. In their further observations of 23 October 2003, the Government raised a preliminary objection concerning non-exhaustion of domestic remedies in the light of the Law on compensation for immovable properties located within the boundaries of the “TRNC”, which was adopted on 30 June 2003 (Law no. 49/2003). They also noted that since 23 April 2003, Greek Cypriots had free access to the north of the island by showing passports at specified crossing points. Administrative and judicial remedies in the “TRNC” were therefore accessible to them.

16. Law no. 49/2003 provided for the establishment of an independent Immovable Property Determination, Evaluation and Compensation Commission with jurisdiction to award compensation for Greek-Cypriot immovable properties in the “TRNC”, on the basis of the market value on 20 July 1974, plus compensation for the loss of use, loss of income and increases in the value of property. The decisions of this Commission could be appealed to the High Administrative Court. Given the existence of this remedy, the applicant could no longer claim to be a victim of a violation of his rights under Article 1 of Protocol No. 1.

B. The applicant’s arguments

17. The applicant maintained that he was actually the owner of the properties mentioned in his application, as was confirmed by the certificates of ownership issued by the Republic of Cyprus. The respondent Government had failed to produce the original complete register of the Land Office. In any event, the extracts produced by the Government only related to three plots of land (notably, those described in paragraph 9 (c), (d) and (e) above).

18. The applicant submitted that he had had a proprietary interest in the plots of land at issue at least from 1974 onwards, which was before the date on which Turkey had accepted the jurisdiction of the Commission and the Court. As a consequence, there had been an interference with his right to the peaceful enjoyment of his possessions after that date. He relied on the principles laid down in the case of Loizidou v. Turkey ((merits) 18 December 1996, Reports of Judgments and Decisions 1996-VI), where the Court had denied legal validity to Article 159 of the “TRNC” Constitution and to all subsequent legislation enacted by the “TRNC” authorities.

19. The applicant alleged that Law no. 49/2003 was aimed at providing a false and illusory domestic remedy in order to avoid the property claims of Greek Cypriots being adjudicated by the European Court of Human Rights. Furthermore, the objection of non-exhaustion had been raised after the application had been declared admissible. Law no. 49/2003 had not existed at the time when the application was lodged, did not provide a sufficient and effective remedy, was discriminatory and proceeded on the basis that the expropriation was lawful. Furthermore, the applicant could lose his victim status only if the violation of the Convention was expressly recognised and fully remedied by the respondent Government’s authorities. This had not happened in the present case.

C. Third-party intervener’s arguments

20. The Government of Cyprus observed that the “TRNC” authorities were in possession of all the records of the Department of Lands and Surveys relating to the title to properties in northern Cyprus. It was therefore the duty of the respondent Government to produce them.

21. The authorities of the Republic of Cyprus had conducted searches in order to verify whether the Turkish-Cypriots settlers indicated by the respondent Government had had titles to land in northern Cyprus. The result of these searches had been negative. The Guardian of Turkish-Cypriot property had no record of any expropriation by the Government of Cyprus of property owned by the above mentioned Turkish Cypriots.

22. The third-party intervener further submitted that the compensation available under Law no. 49/2003 did not alter the fact that the Court did not recognise the acts of the “TRNC” as acts of expropriation. In any event, the said law did not provide any redress for breaches of Article 8 of the Convention and applied only to an extremely restricted category of violations of the right of property. It could not be considered an effective domestic remedy to be exhausted in relation to claims introduced or declared admissible before it was enacted or enforced. Finally, its provisions were incompatible with Articles 6, 13 and 14 of the Convention as well as with Article 1 of Protocol No. 1.

D. The Court’s assessment

23. In its decision on the admissibility, the Court considered that the Government’s objections that the application was incompatible ratione materiae and ratione temporis were closely linked to the substance of the applicant’s complaints and that they should be examined together with the merits of the application.

24. The Court first notes that the applicant was not the owner of the house in Morphou described in paragraph 8 above, this property belonging to his wife. As a consequence, as far as this house is concerned, the applicant did not have a “possession” and the Government’s objection that the application is incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1 should be upheld. The same applies to the fields described in paragraph 9 (c), (d) and (e) above which, according to the extracts of the land register produced by the respondent Government, in 1974 belonged to persons other than the applicant. The latter did not prove that he acquired ownership of these plots of land at a later date.

25. As for the remaining properties, the Court considers that the documents submitted by the applicant (see paragraph 10 above) provide prima facie evidence that in 1974 he had a title of ownership over the fields described in paragraph 9 (a) and (b) above. As the respondent Government failed to produce convincing evidence in rebuttal, the Court is of the opinion that the applicant had a “possession” over these two fields within the meaning of Article 1 of Protocol No. 1.

26. As to the Government’s argument that the properties were subsequently expropriated by the “TRNC” authorities, the Court recalls that in the case of Loizidou ((merits) cited above, §§ 44 and 46) it concluded that it could not attribute legal validity for the purposes of the Convention to the provisions of Article 159 of the “TRNC” fundamental law, concerning the acquisition to the “TRNC” of the immovable properties considered to have been abandoned on 13 February 1975. It furthermore considered that Greek Cypriots who, like Mrs Loizidou, had left their properties in the northern part of the island in 1974 could not be deemed to have lost title to their property.

27. It follows that the applicant is still the owner of the properties at issue. Despite this, he was unable to make use of and have access to his plots of land. In 1974 Turkey had not recognised the right of individual petition. It did so on 22 January 1987 and should be held accountable for any interference with the applicant’s property rights which had occurred after that date. It is also to be recalled that the Court had duly examined and rejected the objection of inadmissibility by reason of lack of effective control over northern Cyprus raised by the Turkish Government in the case of Cyprus v. Turkey ([GC], no. 25781/94, §§ 69-81, ECHR 2001-IV). It sees no reason to depart from its reasoning and conclusions in the instant case.

28. Lastly, as regards the objections of non-exhaustion of domestic remedies and lack of victim status raised by the Government in their further observations of 23 October 2003 relating to the Law on compensation for immovable properties located within the boundaries of the “TRNC”, the Court notes that these objections were raised after the application was declared admissible. They cannot, therefore, be taken into account at this stage of the proceedings (see Demades v. Turkey (merits), no. 16219/90, § 20, 31 July 2003).

29. It follows that the Government’s preliminary objection of incompatibility ratione materiae should be upheld with regard to the applicant’s claim under Article 1 of Protocol No. 1 as far as the properties described in paragraph 8 and paragraph 9 (c), (d) and (e) above are concerned.

30. The reminder of the Government’s preliminary objections should be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

31. The applicant complained that the Turkish occupation of northern Cyprus had prevented him from having access to his properties situated in that part of the island.

He invoked Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The arguments of the parties

1. The Government

32. The Government submitted that, due to the relocation of the populations, it was necessary to facilitate the rehabilitation of Turkish‑Cypriot refugees. The Greek-Cypriot side had taken similar measures in respect of abandoned Turkish-Cypriot properties in the southern part of the island.

33. It would be unrealistic and highly dangerous to recognise the right of the applicant to violate the United Nations “buffer zone” and have access to his alleged properties. Property rights and the question of reciprocal compensation had to be dealt with through negotiations, within the context of inter-communal talks. There was a public interest in not undermining these talks. The applicant’s complaints had been the consequence of the political situation in Cyprus and not of the 1974 Turkish intervention.

2. The applicant

34. The applicant argued that the interference with his property rights could not be justified under Article 1 of Protocol No. 1. The policies of the “TRNC” could not furnish a legitimate aim since the establishment of the “TRNC” was an illegitimate act. In any event, the need to re-house displaced Turkish Cypriots could not justify the complete negation of the applicant’s property rights. This conclusion was reinforced by the fact that much of the property taken from Greek Cypriots had been used to house settlers from mainland Turkey. The fact that property rights had been one of the subjects under discussion in the inter-communal talks could not justify the taking of property without compensation.

B. The third-party intervener’s arguments

35. The Government of Cyprus noted that the present case was similar to that of Loizidou ((merits), cited above), where the Court had found that the loss of control of property by displaced persons arose as a consequence of the occupation of the northern part of Cyprus by Turkish troops and the establishment of the “TRNC”, and that the denial of access to property in occupied northern Cyprus constituted a continuing violation of Article 1 of Protocol No. 1. This interference did not serve any legitimate aim.

C. The Court’s assessment

36. The Court recalls that in the aforementioned Loizidou case ((merits), cited above, §§ 63-64), it reasoned as follows:

“63. ... as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy, her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1. Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred, be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it clearly falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment.

64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the ‘TRNC’ and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey.

It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial of access and a purported expropriation without compensation.

Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.”

37. In the case of Cyprus v. Turkey (cited above) the Court confirmed the above conclusions (§§ 187 and 189):

“187. The Court is persuaded that both its reasoning and its conclusion in the Loizidou judgment (merits) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the ‘TRNC’ authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1.

...

189. .. there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.”

38. The Court sees no reason in the instant case to depart from the conclusions which it reached in the Loizidou and Cyprus v. Turkey cases (op. cit.; see also Demades (merits), cited above, § 46).

39. Accordingly, it concludes that there has been and continues to be a violation of Article 1 of Protocol No. 1 by virtue of the fact that the applicant is denied access to and control, use and enjoyment of his properties described in paragraph 9 (a) and (b) above as well as any compensation for the interference with his property rights.

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

40. The applicant submitted that in 1974 he had had his home in Morphou. As he had been unable to return there, he was the victim of a violation of Article 8 of the Convention.

This provision reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

41. The Government disputed this claim.

42. The applicant submitted that, contrary to the applicant in the Loizidou case, he had had his principal residence in Morphou. He claimed that any interference with his Article 8 rights had not been justified under the second paragraph of this provision.

43. The Government of Cyprus submitted that where the applicant’s properties constituted the person’s home, there was a violation of Article 8 of the Convention.

44. The Court notes that the Government failed to produce any evidence capable of casting doubt upon the applicant’s statement that, at the time of the Turkish invasion, he was regularly residing in Morphou and that this house was treated by him and his family as a home.

45. Accordingly, the Court considers that in the circumstances of the present case, the applicant’s wife’s house qualified as his “home” within the meaning of Article 8 of the Convention at the time when the acts complained of took place.

46. The Court observes that the present case differs from the Loizidou case ((merits), cited above) since, unlike Mrs Loizidou, the applicant actually had a home in northern Cyprus.

47. The Court notes that from 1974 onwards the applicant was unable to gain access to and to use that home. In this connection the Court recalls that, in its judgment in the case of Cyprus v. Turkey (cited above, §§ 172-175), it concluded that the complete denial of the right of Greek-Cypriot displaced persons to respect for their homes in northern Cyprus since 1974 constituted a continuing violation of Article 8 of the Convention. The Court reasoned as follows:

“172. The Court observes that the official policy of the ‘TRNC’ authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south. Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them.

173. The Court further notes that the situation impugned by the applicant Government has obtained since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in ‘legislation’ and is enforced as a matter of policy in furtherance of a bi-zonal arrangement designed, it is claimed, to minimise the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General ...

174. The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 § 2 of the Convention (see paragraph 173 above); secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing.

175. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.”

48. The Court sees no reason in the instant case to depart from the above reasoning and findings (see also Demades (merits), cited above, §§ 36-37).

49. Accordingly, it concludes that there has been a continuing violation of Article 8 of the Convention on account of the complete denial of the applicant’s right to respect for his home.

VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

50. The applicant complained of a violation under Article 14 of the Convention on account of discriminatory treatment against him in the enjoyment of his rights under Article 8 of the Convention and Article 1 of Protocol No. 1. He alleged that this discrimination had been based on his national origin and religious beliefs.

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

51. The Government disputed these claims. They noted that the differentiation of the Greek and Turkish Cypriot communities had been a consequence of the political situation on the island which could not be an issue of discrimination under Article 14 of the Convention.

52. The Government of Cyprus submitted that the policy of the Turkish authorities in the occupied area as far as Greek Cypriot homes and properties were concerned had been based upon racial discrimination. This was incompatible with Article 14 of the Convention and illegal in terms of customary or general international law.

53. The Court recalls that in the above-mentioned Cyprus v. Turkey case, it found that, in the circumstances of that case, the Cypriot Government’s complaints under Article 14 amounted in effect to the same complaints, albeit seen from a different angle, as those considered in relation to Article 8 of the Convention and Article 1 of Protocol No. 1. Since it had found a violation of the latter provisions, it considered that it was not necessary in that case to examine whether there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for family life and home and to the peaceful enjoyment of their possessions (§ 199).

54. The Court sees no reason in this case to depart from that approach. Bearing in mind its conclusion on the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, it finds that it is not necessary to carry out a separate examination of the complaint under Article 14 (see, mutatis mutandis, Eugenia Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90, §§ 37-38, 31 July 2003).

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. 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

56. In his just satisfaction claims of April 2000, the applicant requested 337,281 Cypriot pounds (CYP – approximately 576,278 euros (EUR)) for pecuniary damage. He relied on an expert’s report assessing the value of his losses which included the loss of annual rents 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 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 Kapouti, Livera and Morphou villages.

57. The starting point for the valuation report was the annual rental value of the applicant’s properties in 1974, calculated on the basis of a percentage (from 4 to 6%) of the market value of the properties or assessed by comparing the rental value of similar land at the relevant time. This sum was subsequently adjusted upwards according to an average annual rental increase of 12% (7% for agricultural land – notably the fields described in paragraph 9 (a), (b) and (c) above). Compound interests for delayed payment was applied at a rate of 8%, the total sum due for interest being CYP 117,105 (approximately EUR 200,085).

58. According to the expert, the 1974 market and/or rental values of the applicant’s fields listed in paragraph 9 (a) – (e) above were the following:

Property listed under (a): rental value CYP 25 (approximately EUR 42.7);

Property listed under (b): rental value CYP 336 (approximately EUR 574);

Property listed under (c): rental value CYP 515 (approximately EUR 880);

Property listed under (d): market value CYP 11,037 (approximately EUR 18,857); rental value CYP 60 (approximately EUR 102.5);

Property listed under (e): market value CYP 7,528 (approximately EUR 12,862); rental value CYP 60 (approximately EUR 102.5).

59. For the house with yard in Morphou belonging to the applicant’s wife (see paragraph 8 above), the expert considered that the 1974 market value was CYP 10,232 (approximately EUR 17,482), while the rental value was CYP 409 (approximately EUR 699).

60. In a letter of 28 January 2008 the applicant observed that a long lapse of time had passed since he had presented his claims for just satisfaction and that the claim for pecuniary losses needed to be updated according to the increase of the market value of land in Cyprus (between 10 and 15% per annum).

61. In his just satisfaction claims of April 2000, 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 case ((just satisfaction), cited above), 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 14 of the Convention. He furthermore claimed CYP 20,000 (approximately EUR 34,172) with respect for the moral damage suffered for the loss of his home.

(b) The Government

62. Following a request from the Court, on 22 September 2008 the Government filed comments on the applicant’s claims for just satisfaction. They observed that the applicant’s properties were “fields” and not “building plots” and that very little rent could be obtained from fields in Cyprus. 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.

63. The Government further submitted that Turkey had recognised the jurisdiction of the Court on 21 January 1990, and not in January 1987, and that the question of compensation should be referred to the Immovable Property Determination, Evaluation and Compensation Commission, an organ which was in a better position to deal with complicated property issues.

64. Finally, the Government did not comment on the applicant’s submissions under the head of non-pecuniary damage.

2. The third-party intervener

65. The Government of Cyprus fully supported the applicant’s claims for just satisfaction.

3. The Court’s assessment

66. The Court first recalls that it has concluded that the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1 as far as the properties described in paragraph 8 and in paragraph 9 (c), (d) and (e) of the present judgment are concerned (see paragraph 24 above). It follows that he is entitled to claim pecuniary damages only in respect to the fields described in paragraph 9 (a) and (b) above.

67. The Court further notes that the Government’s submission that the damage suffered by the applicant should be determined by the Immovable Property Determination, Evaluation and Compensation Commission and not by the Strasbourg organs is, in substance, a repetition of the objection of non-exhaustion of domestic remedies. Such an objection has been rejected by the Court for the reasons indicated in paragraph 28 of the present judgment. The Court does not see any reason to depart from its conclusions on this issue.

68. In the circumstances of the case, the Court considers that the question of the application of Article 41 in respect of pecuniary and non-pecuniary damage is not ready for decision. It observes, in particular, that the parties have failed to provide reliable and objective data pertaining to the prices of land and real estate in Cyprus at the date of the Turkish intervention. This failure renders it difficult for the Court to assess whether the estimate furnished by the applicant of the 1974 market value of his plots of land is reasonable. The question must accordingly be reserved and the subsequent procedure fixed with due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1 of the Rules of Court).

B. Costs and expenses

69. In his just satisfaction claims of April 2000, the applicant sought CYP 4,000 (approximately EUR 6,834) for the costs and expenses incurred before the Court. This sum included the costs of the expert report assessing the value of his properties.

70. The Government did not comment on this point.

71. In the circumstances of the case, the Court considers that the question of the application of Article 41 in respect of costs and expenses is not ready for decision. The question must accordingly be reserved and the subsequent procedure fixed with due regard to any agreement which might be reached between the respondent Government and the applicant.

FOR THESE REASONS, THE COURT

1. Upholds unanimously the Government’s preliminary objection that the applicant’s claim under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention as far as the properties described in paragraph 8 and in paragraph 9 (c), (d) and (e) of the present judgment are concerned;

2. Dismisses by six votes to one the remainder of the Government’s preliminary objections;

3. Holds by six votes to one that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds by six votes to one that there has been a violation of Article 8 of the Convention;

5. Holds unanimously that it is not necessary to examine whether there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1;

6. Holds unanimously that the question of the application of Article 41 is not ready for decision;

accordingly,

(a) reserves the said question in whole;

(b) invites the Government and the applicant to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.

Done in English, and notified in writing on 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence EarlyNicolas Bratza
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Karakaş is annexed to this judgment.

N.B.
T.L.E.

DISSENTING OPINION OF JUDGE KARAKAŞ

(Translation)

Unlike the majority, I consider that the objection of non-exhaustion of domestic remedies raised by the Government should not have been rejected. Consequently, I cannot agree with the finding of violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention.

The rule of exhaustion of domestic remedies is intended to give Contracting States the opportunity to prevent or provide redress for violations alleged against them before such allegations are referred to the Court. That reflects the subsidiary nature of the Convention system.

Faced with the scale of the problem of deprivations of title to property alleged by Greek Cypriots (approximately 1,400 applications of this type lodged against Turkey), the Court, in the operative part of its Xenides‑Arestis v. Turkey judgment of 22 December 2005, required the respondent State to provide a remedy guaranteeing the effective protection of the rights set forth in Article 8 of the Convention and Article 1 of Protocol No. 1 in the context of all the similar cases pending before it. The State has a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41 of the Convention, but also to select the general or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The Government submitted that by enacting the Law on Compensation for Immovable Properties (Law no. 67/2005) and setting up a Commission to deal with compensation claims it had discharged that obligation (see also Xenides‑Arestis v. Turkey (just satisfaction), no. 46347/99, § 37, 7 December 2006). It is that domestic remedy which, in their submission, the applicant failed to exercise in the present case.

The exhaustion of domestic remedies is normally assessed at the time when an application is lodged with the Court. However, there are exceptions to the rule which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001).

Examples of such exceptions are to be found in the cases against Italy which raised similar questions and in which the Court found that certain specific facts justified departing from the general principle (see Brusco v. Italy, (dec.) no. 69789/01, 6 September 2001).

In other examples the Court also took the view, in the light of the specific facts of the cases concerned, and having regard to the subsidiary nature of the Convention mechanism, that new domestic remedies had not been exhausted (see the following decisions: Nogolica v. Croatia, no. 77784/01, 5 September 2002; Slaviček v. Croatia, no. 20862/02, 4 July 2002; Andrášik and Others v. Slovakia, nos. 57984/00, 60226/00, 60242/00, 60679/00, 60680/00 and 68563/01; and Içyer v. Turkey, no. 18888/02, 29 January 2002).

In situations where there is no effective remedy affording the opportunity to complain of alleged violations, individuals are systematically compelled to submit to the European Court of Human Rights applications which could have been investigated first of all within the domestic legal order. In that way, the functioning of the Convention system risks losing its effectiveness in the long term (the most pertinent example is the Broniowski case, no. 31443/96, 22 June 2004).

In my opinion the above examples provide an opportunity to review the conditions for admissibility in the event of a major change in the circumstances of the case. For the similar post-Loizidou cases, the Court can always reconsider its admissibility decision and examine the preliminary objection of failure to exhaust domestic remedies.

Since the Court may reject “at any stage of the proceedings” (Article 35 § 4 of the Convention) an application which it considers inadmissible, new facts brought to its attention may lead it, even when examining the case on the merits, to reconsider the decision in which the application was declared admissible and ultimately declare it inadmissible pursuant to Article 35 § 4 of the Convention, taking due account of the context (see, for example, Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003, and Azinas v. Cyprus [GC], no. 56679/00, §§ 37-43, 28 April 2004).

The existence of a “new fact” which has come to light after the admissibility decision may prompt the Court to reconsider that decision.

I consider that the Law on Compensation for Immovable Properties (Law no. 67/2005) and the Commission set up to deal with compensation claims, which are based on the guiding principles laid down by the Court in the Xenides-Arestis case, are capable of providing an opportunity for the State authorities to provide redress for breaches of the Convention’s provisions, including breaches alleged in applications already lodged with the Court before the Act’s entry into force (see Içyer v. Turkey, cited above, § 72). That consideration also applies to applications already declared admissible by the Court (see Azinas, cited above).

In order to conclude whether there has or has not been a breach of the Convention, complainants must first exercise the new domestic remedy and then, if necessary, lodge an application with the European Court of Human Rights, the international court. Following that logic, I cannot in this case find any violation of the Convention’s provisions.

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