CASE OF KYRIAKOU v. TURKEY

FOURTH SECTION

CASE OF KYRIAKOU v. TURKEY

(Application no. 18407/91)

JUDGMENT

STRASBOURG 

27 January 2009

FINAL

06/07/2009

This judgment may be subject to editorial revision.

In the case of Kyriakou v. Turkey,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Işıl Karakaş, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 6 January 2009,

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

PROCEDURE

1. The case originated in an application (no. 18407/91) 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 Yiannis Kyriakou (“the applicant”), on 31 May 1991.

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

3. The applicant alleged that the Turkish occupation of the northern part of Cyprus had deprived him of his home and properties.

4. The applicant died on 3 November 1994. No letters of administration having been granted for his estate, his lawful heirs are his wife, Mrs Andriana Yianni Kyriakou and his two sons, Andreas Ioannou and Kyriakos Ioannou. In September 1999 the applicant’s heirs informed the Court that they wished to pursue the application on behalf of the deceased.

5. 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).

6. By a decision of 8 June 1999 the Court declared the application admissible.

7. 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

8. The applicant was born in 1908.

9. The applicant grew up in Trypimeni, a village in the District of Famagusta. He alleged that he was the owner of the following immovable properties in the village:

(a) registration no. 5147, plot no. 20, sheet/plan 13/40, house with two rooms and one kitchen, one veranda, oven, trees and yard; the applicant alleged that two extra rooms and one kitchen had been added later; area of the plot of land: 530 sq. m; area of the house: 230 sq. m;

(b) registration no. 2597, plot no. 442, sheet/plan 13/40, field with olive trees; area: 13,713 sq. m.

10. In support of his claim of ownership, the applicant submitted copies of the original title deeds. It appears from these documents that the applicant owned five twelfths of the property described above under paragraph 9 (a) and half of the property described above under paragraph 9 (b). However, in his observations of September 1999, the applicant’s lawyer alleged that his client had had full ownership of the whole of the two plots. He submitted that from 1921 onwards only the applicant, his wife and his two children had been living in the house built on plot no. 20. This house had been the marital home from the time of his wedding and the applicant had had the absolute and unrestricted use and occupation of it. Moreover, from August 1928 the applicant had been cultivating and taking care of the whole of plot no. 442. He had been a farmer who earned his income from the production of the olive trees. In support of these statements, the applicant’s lawyer produced a certificate issued by the Trypimeni village committee on 25 September 1999. The reason why the applicant had not been registered as the owner of the whole share of the two plots was that the applicant’s mother, Mrs Maria Yianni, had been the owner of two twelfths of plot no. 20. She had given one twelfth of the plot to the applicant and one twelfth to his brother, Mr Elias Kyriakou, in the form of an unregistered gift. The applicant’s brother had also been the owner of the remaining five twelfths of plot no. 20 and of the remaining half of plot no. 442. In 1956 Mr Elias Kyriakou, who had emigrated to Australia and had no intention of coming back to Cyprus, had given all his shares to the applicant. However, no official transfer of ownership had been entered in the land register. In support of his version of the facts, the applicant’s lawyer produced an affidavit from the applicant’s son, Mr Andreas Ioannou.

11. In July 1974, as the Turkish troops were advancing, the applicant and his family had to leave Famagusta and flee to the area still controlled by the Cypriot Government. The applicant had lived until his death in a small house located in a housing scheme for displaced persons.

12. Since 1974 the applicant had been unable to return to his home and property in the northern part of Cyprus. He participated in various peaceful demonstrations and marches, but had been prevented from walking home by the Turkish troops. On 9 December 1990 the applicant took part once again in a car convoy organised by persons from three villages in Kyrenia and from Trypimeni wishing to return to their homes in the north peacefully. The participants in the convoy had informed the commander of the United Nations (UN) forces in Cyprus of their intention to return home. They drove to the “buffer zone” checkpoint on the main road linking Nicosia and Famagusta. There they stopped and asked the UN officer on duty to be allowed to return to their homes, properties and villages. They requested him to transmit their demand to the Turkish military authorities. The UN officer announced to the applicant and the other participants in the convoy that the Turkish military authorities had refused their request to drive through the checkpoint and enter the northern part of Cyprus.

THE LAW

I. PRELIMINARY ISSUE

13. The Court notes at the outset that the applicant died on 3 November 1994, after the lodging of his application, while the case was pending before the Court. His heirs (his wife and his two sons) informed the Court that they wished to pursue the application lodged by him (see paragraph 4 above). Although the heirs of a deceased applicant cannot claim a general right for the examination of the application brought by the latter to be continued by the Court (see Scherer v. Switzerland, 25 March 1994, Series A no. 287), the Court has accepted on a number of occasions that close relatives of a deceased applicant are entitled to take his or her place (see Deweer v. Belgium, 27 February 1980, § 37, Series A no. 35, and Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281-A).

14. For the purposes of the instant case, the Court is prepared to accept that the applicant’s wife and sons can pursue the application initially brought by Mr Yiannis Kyriacou (see, mutatis mutandis, Kirilova and Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and 7319/02, § 85, 9 June 2005, and Nerva and Others v. the United Kingdom, no. 42295/98, § 33, ECHR 2002‑VIII).

II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

15. The Government raised preliminary objections of inadmissibility ratione loci and ratione temporis, non-exhaustion of domestic remedies and lack of victim status. The Court observes that these objections were identical to those raised in the case of Alexandrou v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009), and should be dismissed for the same reasons.

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

16. The applicant complained that since July 1974, Turkey had prevented him from exercising his right to the peaceful enjoyment of his possessions.

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.”

17. The Government disputed this claim.

A. The arguments of the parties

1. The Government

18. The Government submitted that the properties claimed by the applicant were situated outside the jurisdiction of Turkey and that the latter had no knowledge about them. In any event, the applicant had not produced any title deed supporting his claim to ownership. His properties had not been occupied or used by the Turkish army. Moreover, the applicant had not applied through the proper channels to visit his alleged properties. He had not attempted to enter the northern part of Cyprus at an approved crossing point, and had not been prevented from doing so by Turkish or Turkish Cypriot forces, but by UNFICYP officials.

19. Finally, the alleged interference with the applicant’s property rights could not be seen in isolation from the general political situation on the island of Cyprus and had in any event been justified in the general interest.

2. The applicant

20. The applicant relied on the principles laid down by the Court in the Loizidou v. Turkey judgment ((merits), 18 December 1996, Reports of Judgments and Decisions 1996-VI), and recalled that on 9 December 1990 he had been prevented from returning to his properties and home.

B. The third-party intervener

21. 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 “Turkish Republic of Northern Cyprus” (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.

C. The Court’s assessment

22. The Court first notes that the documents submitted by the applicant (see paragraph 10 above) provide prima facie evidence that he had a title of ownership over the properties at issue. As the respondent Government failed to produce convincing evidence in rebuttal, the Court considers that the applicant had a “possession” within the meaning of Article 1 of Protocol No. 1.

23. 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.”

24. 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.”

25. 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 v. Turkey (merits), no. 16219/90, § 46, 31 July 2003).

26. Accordingly, it concludes that there has been a violation 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 properties as well as any compensation for the interference with his property rights.

VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

27. The applicant submitted that in 1974 he had had his home in Trypimeni. As he had been unable to return there until his death, 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.”

28. The Government disputed this claim, observing that the applicant’s inability to return to northern Cyprus had been an inevitable consequence of the political state of affairs on the island and of the existence of the UN buffer zone. The alleged interference with his rights under Article 8 had therefore been necessary in the interests of national security, public safety, for the prevention of disorder and for the protection of the rights and freedoms of others.

29. The applicant submitted that, contrary to the applicant in the Loizidou case, he had been the owner of a house in Trypimeni and that until 1974 he and his family had been using these premises as their home. He claimed that any interference with his Article 8 rights had not been justified under the second paragraph of this provision.

30. 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.

31. 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 Trypimeni and that this house was treated by the applicant and his family as a home.

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

33. 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 Trypimeni.

34. The Court notes that from 1974 until his death 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.”

35. 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).

36. 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.

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

37. The applicant complained of a violation of the general obligation to respect human rights enshrined in Article 1 of the Convention. He also 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.

The relevant provisions read as follows:

Article 1 of the Convention

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

Article 14 of the Convention

“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.”

38. The Government disputed these claims.

39. The Court recalls that in the Alexandrou case (cited above, §§ 38-39) it has found that it was not necessary to carry out a separate examination of the complaint under Article 14 of the Convention. The Court does not see any reason to depart from that approach in the present case (see also, mutatis mutandis, Eugenia Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90, §§ 37-38, 31 July 2003). Moreover, the Court has found the respondent Government to be in breach of Article 1 of Protocol No. 1 and of Article 8 of the Convention and does not consider it necessary to examine the complaint under Article 1, which is a framework provision that cannot be breached on its own (see Ireland v. the United Kingdom, § 238, 18 January 1978, Series A no. 25, and Eugenia Michaelidou Ltd and Michael Tymvios, cited above, § 42).

VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

40. The applicant submitted that he had not had at his disposal any effective remedy by which to obtain redress for the above-mentioned grievances.

He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

41. The Government disputed this claim, observing that the “effective remedy” mentioned in Article 13 of the Convention necessarily referred to a remedy in the domestic law of the “TRNC”. Turkey could neither interfere with the judicial system of the “TRNC” nor provide remedies to supplement those existing under domestic law. In the light of the above, the Government submitted that no issue under Article 13 could be raised by the present application.

42. The Court notes that the applicant submitted no pleadings on this point, including on the issue of applicability. It considers therefore that it is not necessary to examine this complaint (see Demades (merits), cited above, § 48).

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. In their just satisfaction claims of September 1999, the applicant’s heirs requested 53,600 Cypriot pounds (CYP – approximately 91,580 euros (EUR)) for pecuniary damage. They relied on an expert’s report assessing the value of their losses which included the loss of annual rent collected or expected to be collected from renting out the 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 September 1999. The applicant’s heirs did not claim compensation for any purported expropriation since they were still the legal owner of the properties. The evaluation report contained a description of Trypimeni village. The applicant’s heirs requested that any sum awarded by the Court under Article 41 of the Convention be distributed equally amongst them.

45. The starting point of the valuation report was the rental value of the applicant’s properties in 1974, calculated on the basis of the rent obtainable for comparable properties in the area and on a percentage of their market value. According to the expert, the annual rent which could have been obtained in 1974 from the applicant’s house (whose open-market value was CYP 5,260 – approximately EUR 8,987) and field were CYP 264 and CYP 685 respectively, thus the total sum of CYP 949 (approximately EUR 1,621). This sum was subsequently adjusted upwards according to an annual rental increase of 5%, in order to arrive at the annual rent receivable in 1987 (CYP 1,789) and in 1999 (CYP 3,212). Compound interest for delayed payment was applied at a rate of 8% per annum.

46. On 28 January 2008, following a request form the Court for an update on developments in the case, the applicant’s heirs submitted that the market and rental value of their properties had considerably increased and that it was necessary to upgrade their claims for just satisfaction. However, despite their lawyer’s efforts, it had not been possible to produce a revised valuation report.

47. In their just satisfaction claims of September 1999, the applicant’s heirs further claimed the total sum of CYP 80,000 (approximately EUR 136,688) in respect of non-pecuniary damage. They 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 Articles 8 and 14 of the Convention.

(b) The Government

48. The Government filed comments on the applicant’s heirs’ updated claims for just satisfaction on 30 June 2008 and 15 October 2008. They pointed out that the present application was part of a cluster of similar cases raising a number of problematic issues and maintained that the claims for just satisfaction were not ready for examination. The Government had in fact encountered serious problems in identifying the properties and their present owners. The information provided by the applicants in this regard was not based on reliable evidence. As concerns specifically the present application, the Government noted that almost all the property located in the Maraş area of Famagusta belonged to a religious trust known as Vakf. Once the latter had acquired ownership, its real estate could not be alienated, transferred or inherited. The title deeds produced by the applicant showed that he had usurped the Vakf properties. The Government submitted that the issues raised by the respect of the principles applicable to this kind of property should be left to the domestic courts and that the European Court of Human Rights should not deliver judgments which might prejudice the rights of the Cyprus Evcaf Administration (which had competence over Vakf properties) and those of the beneficiaries.

49. Moreover, owing to the lapse of time since the lodging of the applications, new situations might have arisen: the properties could have been transferred, donated or inherited within the legal system of southern Cyprus. These facts would not have been known to the respondent Government and could be certified only by the Greek Cypriot authorities, who, since 1974, had reconstructed the registers and records of all properties in northern Cyprus. Applicants should be required to provide search certificates issued by the Department of Lands and Surveys of the Republic of Cyprus. Moreover, in cases where the original applicant had passed away or the property had changed hands, questions might arise as to whether the new owners had a legal interest in the property and whether they were entitled to pecuniary and/or non-pecuniary damages.

50. The Government further noted that some applicants had shared properties and that it was not proven that their co-owners had agreed to the partition of the possessions. Nor, when claiming damages based on the assumption that the properties had been rented after 1974, had the applicants shown that the rights of the said co-owners under domestic law had been respected.

51. The Government further 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’s heirs had instead proceeded on the assumption that the property market would have continued to flourish with sustained growth during the whole period under consideration.

52. 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’s heirs the option to sell the property to the State, thereby relinquishing title to and claims in respect of it.

53. 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 property described in paragraph 9 (a) above. The other immovable property referred to in the application was possessed by refugees; it 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 property between 1974 and the date of payment. Had the applicant’s heirs applied to the Immovable Property Commission, the latter would have offered CYP 5,889.2 (approximately EUR 10,062) to compensate the loss of use and CYP 6,272.7 (approximately EUR 10,717) for the value of the properties. According to an expert appointed by the “TRNC” authorities, the 1974 open-market value of the properties described in paragraph 9 above was CYP 1,025 (approximately EUR 1,751). Upon fulfilment of certain conditions, the Immovable Property Commission could also have offered the applicant’s heirs exchange of their properties with Turkish-Cypriot properties located in the south of the island.

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

2. The third-party intervener

55. The Government of Cyprus fully supported the applicant’s heirs’ updated claims for just satisfaction.

3. The Court’s assessment

56. The Court first notes that the Government’s submission that doubts might arise as to the applicant’s title of ownership over the properties at issue (see paragraphs 48-49 above) is, in substance, an objection of incompatibility ratione materiae with the provisions of Article 1 of Protocol No. 1. Such an objection should have been raised before the application was declared admissible or, at the latest, in the context of the parties’ observations on the merits. In any event, the Court cannot but confirm its finding that the applicant had a “possession” over the house and the field in Trypimeni village within the meaning of Article 1 of Protocol No. 1 (see paragraph 22 above).

57. 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’s heirs of the 1974 market value of their properties 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’s heirs (Rule 75 § 1 of the Rules of Court).

B. Costs and expenses

58. In their just satisfaction claims of September 1999, relying on bills from their representative, the applicant’s heirs sought CYP 2,620 (approximately EUR 4,476) for the costs and expenses incurred before the Court. This sum included CYP 800 (approximately EUR 1,366) for the cost of the expert report assessing the value of the properties.

59. The Government did not comment on this point.

60. 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’s heirs.

FOR THESE REASONS, THE COURT

1. Holds unanimously that the applicant’s heirs have standing to continue the present proceedings in his stead;

2. Dismisses by six votes to one 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 Articles 1, 13 and 14 of the Convention;

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’s heirs 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 27 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıNicolas Bratza
Deputy 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.
F.A.

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, ECHR 2001-V (extracts)).

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, ECHR 2001-IX).

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, ECHR 2002-VIII; Slaviček v. Croatia, no. 20862/02, ECHR 2002-VII; Andrášik and Others v. Slovakia, nos. 57984/00, 60226/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX; and Içyer v. Turkey, no. 18888/02, ECHR 2006-I).

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 v. Poland case ([GC], no. 31443/96, ECHR 2004-V).

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, ECHR 2004-III).

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, 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.

Full & Egal Universal Law Academy