DAMIANOU CHARALAMBIDE v. CYPRUS

THIRD SECTION

DECISION

Application no. 80777/17
Eleni DAMIANOU CHARALAMBIDE
against Cyprus

The European Court of Human Rights (Third Section), sitting on 7 November 2023 as a Chamber composed of:

 Pere Pastor Vilanova, President,
 Yonko Grozev,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,

Having regard to the above application lodged on 20 November 2017,

Having regard to the decision to give notice to the Cypriot Government (“the Government”) of the applicant’s complaint concerning the alleged deprivation of her property without sufficient compensation under Article 1 of Protocol No. 1 and to declare the remainder of the application inadmissible;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Ms Eleni Damianou Charalambide, is a Cypriot national, who was born in 1949 and lives in Limassol. She was represented before the Court by Mr A. Demetriades and Mr P. Faidonos, lawyers practising in Nicosia and Limassol.

2.  The Cypriot Government (“the Government”) were represented by their Agent, Mr George L. Savvides, Attorney General of the Republic of Cyprus.The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.Building Permit and Compulsory Acquisition

4.  The applicant was the registered owner of a plot of land with the registration no. 04-1 (formerly 8747), plot 1 (formerly 404, previously 61/2), Plan/Sheet 2‑210‑341 (formerly LIV/45) (“the property”).

5.  On 26 May 1978 a notice under section 12 of the Streets and Buildings Regulation Law 1946, as amended, (“Cap. 96”) concerning a street-widening scheme and which affected a part of the applicant’s property was published in the official gazette of the Republic of Cyprus (Κ.Δ.Π. 994).

6.  On 23 April 1981 the State issued a compulsory acquisition notification (no. 353) stating that part of the property was required for the “widening and improvement of the seaside road of Limassol – including the construction of pavements and pedestrian streets”.

7.  On 31 December 1981, the State issued a compulsory acquisition order (no. 1498) (“the first compulsory acquisition order”) under the Compulsory Acquisition Law (No. 15/1962), as amended (“the Compulsory Acquisition Law”) ordering the compulsory transfer of the affected part of the property.

8.  On 8 July 1987 under Cap. 96 the applicant obtained a building permit (no. 004114) according to the terms of which 473 sq. m. of the total of 2,357 sq. m of the property was required for a street-widening scheme and would be transferred to the State for that purpose.

9.  On 10 August 1987 the applicant reserved the right to challenge the adverse terms of the permit and to seek compensation. She nonetheless developed the property in accordance with the terms of the building permit without challenging them.

10.  On 29 January 1991 the applicant filed an application (no. 7/91) (παραπομπή) with the Limassol District Court concerning the determination of fair and reasonable compensation for the compulsory acquisition of the affected part of her property (see paragraph 7 above).

11.  On 16 July 1993 the State issued a Revocation Order (no. 1172) revoking the first compulsory acquisition order because “compensation was not paid or deposited in relation to the above-mentioned transfer” and it “considered the immovable property ... not necessary for the general interest purposes mentioned in [compulsory acquisition notification no. 353/81] ...”.

12.  On 13 September 1994 the applicant withdrew application no. 7/91 (see paragraph 10 above).

13.  On 12 October 2001 the State published a notice (Α.Δ.Π. 992/12.10.2001) under the Compulsory Acquisition Law that it would be acquiring 473 sq. m of the applicant’s land.

14.  On 11 October 2002 the same 473 sq. m. originally affected by the street-widening scheme was transferred to the Government under a compulsory acquisition order (Α.Δ.Π. 967/11.10.202) (“the second compulsory acquisition order”) made under the Compulsory Acquisition Law. A requisition order was also issued (Δ.Π. 993/12.10.2001).

15.  The authorities offered the applicant 100 Cyprus pounds (CYP), the equivalent of 170.86 euros (EUR), which she accepted without prejudice to her right to bring proceedings seeking further compensation.Proceedings concerning compensation

(a)   First Instance Proceedings

16.  On 25 November 2003 the applicant filed an application (no. 61/2003) with the Limassol District Court for the determination of the amount of fair and reasonable compensation for the compulsory acquisition (απαλλοτρίωση) of her property.

17.  The parties agreed on, among other things, the market value of the affected part of the applicant’s property. They also agreed that the affected part of the property had remained registered in the applicant’s name; and that the value of the remainder of the property had not been improved or impaired by the compulsory acquisition (δεν υπήρξε υπεραξία ή μείωση αξίας στο υπόλοιπο από την απαλλοτρίωση). The parties lastly agreed on the costs of the procedure as follows: in the event that the court set the amount for damages at CYP 100 – as already offered by the State – then EUR 3000 would be awarded to the applicant for the costs incurred by her in obtaining an expert valuation of the land; in the event that the court dismissed the case then three‑quarters of the legal costs as assessed by the Registrar would be awarded to the applicant, plus the costs incurred for the expert valuation and legal fees. These arrangements were declared to the court as agreed and binding between the parties.

18.  On 31 January 2011 the Limassol District Court issued its decision. It stated that the land subject to the street widening scheme under the permit was regulated by section 13(1) of Cap. 96, which recognised the obligation to pay reasonable compensation where “hardship” had been caused. It held that as a result, the fact that the applicant had failed to challenge the terms of the building permit had not affected her right to compensation in accordance with section 13(1) of Cap. 96 but, on the contrary, that provision guaranteed her inalienable right (αναφαίρετο δικαίωμα) to be compensated under Article 23 of the Constitution for the land that had been compulsorily acquired in the event of a material decrease in the economic value of her property.

The court further held that the compulsory acquisition in dispute constituted a deprivation of 473 sq. m out of 2,357 sq. m of the applicant’s plot, amounting to a deprivation of 21% of her property. According to the court, the applicant suffered a material decrease in the value of the whole property as a result of the compulsory acquisition and for that reason compensation was payable to her under Article 23 of the Constitution, despite the fact that that area had been transferred to the State pursuant to the terms of the building permit (see paragraph 8 above). It was the court’s position that, even in situations where the land had been conceded under the terms of a building permit or for a mandatory street-alignment, the owner could be compensated for the deprivation of his or her property, and that this approach was compatible with the Convention case-law according to which a deprivation of land without compensation amounted to a disproportionate interference with the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention.

The court added that considerable time had passed between the date of the notice of the compulsory acquisition of the applicant’s land and the assessment of the compensation to be paid to her, as a result of which she had had to bear a disproportionate burden. The court therefore awarded the applicant EUR 567,600 in compensation plus interest at 9% until the payment of the said amount, plus costs. The court ordered the applicant to register the property in the name of the State on the land register on receipt of the above‑mentioned compensation.

(b)   Appeal Proceedings

19.  On 23 February 2011 the Government filed an appeal (no. 120/2011) in the Supreme Court (appellate jurisdiction).

20.  On 30 May 2017 the Supreme Court (appellate jurisdiction) issued its judgment. It noted that at the time the first instance decision had been delivered, the judgment of the Supreme Court (appellate jurisdiction) in Mattheos Georgiou Makroselli and Mattheos G. Makrosellis Limited v. The Republic of Cyprus, Civil Appeal no. 268/10, 3 March 2017 (see paragraphs 33 and 42 below), with similar facts to the present case, had not yet been issued. The court stated that the judgment in Mattheos Georgiou Makroselli indicated that, even though the obligation to pay compensation under section 10(η) of the Compulsory Acquisition Law had not been disputed, the owner of an area of property which had previously been ceded for street-widening and had subsequently been compulsorily acquired could not refrain from claiming compensation for impairment under section 13(1) of Cap. 96 and later apply to the court, irrespective of the time and circumstances, claiming compensation based on the market value of the property at the time of the subsequent compulsory acquisition.

The court further held that the mandatory street-widening scheme of 1978 governed by Cap. 96 preceded the compulsory acquisition; the terms relating to the street-widening scheme had been a condition for the grant of the building permit; and even though the applicant had reserved her rights, she had never in fact challenged the building permit or its terms.

The court held in addition that the applicant had developed her land in accordance with the terms of the building permit and in essence had consented to those terms. At the time of the compulsory acquisition there had been no limitation on her property within the meaning of section 10(η) of the Compulsory Acquisition Law or within the meaning of section 13(1) of Cap. 96, which could justify compensation especially in the free market at that time. The court’s view was that at the time of the compulsory acquisition of the land used for the street-widening scheme, there had been no limitation of the applicant’s rights within the meaning of section 10(η) of that law. Therefore, in the view of the court, section 10(α) of the law had been fully implemented since no one would be interested in buying the compulsorily acquired part of the land or the remainder of the property at market value as if the previous street-widening had not taken place because that part of the land had been ceded to the public domain long before, with the applicant’s consent, by virtue of the mandatory street-widening.

Moreover, the court considered that the applicant had missed the time‑limit for challenging the building permit. Whilst, according to the court, the applicant had on the one hand implemented the requirements of the building permit, on the other hand she had tried to take unacceptable advantage of the passage of time by challenging the amount of compensation offered by the Government.

Lastly, the court upheld the Government’s appeal reversing the first instance decision and awarded the applicant EUR 170.85 (the equivalent of CYP 100) in compensation but ordered her to pay the costs of the entire domestic proceedings.Further developments

21.  On 11 September 2017 the amount of EUR 210.75, being EUR 170.86 plus interest, was deposited with the Auditor General of the Republic in the applicant’s name.

22.  On 30 January 2018 the affected area of 473 sq. m was registered in the name of the State.

RELEVANT LEGAL FRAMEWORK AND PRACTICEThe Constitution

23.  The relevant Articles of the Constitution provide:

Article 23

“(1) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right.

The rights of the Republic to underground water, minerals and antiquities are reserved.

(2) No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.

(3) Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right.

Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of such property; such compensation to be determined in case of disagreement by a civil court.

(4) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic or by a municipal corporation or by a Communal Chamber for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from persons belonging to its respective Community, or by a public corporation or a public utility body on which such a right has been conferred by law, and only:

(a) for a purpose which is to the public benefit and shall be specially provided for by a general law of compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution; and

(b) when that purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; and

(c) upon the payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.”

Article 188

“(1) Subject to the provisions of this Constitution and to the following provisions of this Article, all laws in force on the date of the coming into operation of this Constitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution.

 ...

(5) In the present Article –

(a) ‘law’ includes any public instrument made before the date of the coming into operation of this Constitution by virtue of such law;

(b) ‘modification’ includes amendment, adaptation, and repeal.”Streets and Buildings Regulation Law, Cap. 96 (as amended)

24.  The relevant sections of this law provide:

Section 2 - Interpretation

“In this Law

alteration, addition or repair, when used with reference to buildings, means any structural alteration, addition or repair whereby any dimension of a building is altered ...

building means any construction, whether of stone, concrete, mud, iron, wood or other material and includes any pit, foundation, wall, roof, chimney, veranda, balcony, cornice or projection or part of a building, or anything affixed thereto, or any wall, earth bank, fence, paling or other construction enclosing or delimiting or intended to enclose or delimit any land or space.”

Section 3 – Layout etc. of streets and erection of buildings prohibited

without a permit from the appropriate authority

“(1) No person shall

(a) lay out or construct a street;

(b) erect, or suffer or allow to be erected a building or demolish or reconstruct or make any alteration, addition or repair to any existing building, or suffer or allow any such demolition or construction or any such alteration, addition or repair to be made;

(c) lay out or divide any land... into separate sites,

(d) divide any building ... into separate tenements;

(e) start to do any of works or matters herein-before set out

without a permit first obtained from the appropriate authority as provided in subsection (2).”

Section 10 – Certificate of approval

“...

(7) The appropriate authority always sends to the District Land Registry Officer a copy of each certificate of approval which is issued in accordance with the present Law.”

Section 11 – Control of streets

“Every street constructed by virtue of a permit granted under the provisions of section 3 shall, as soon as the certificate of approval (πιστοποιητικό έγκρισης) has been granted, be deemed to be as a public street and shall–

(a) if within the limits of a municipal area, come under the control of the Municipality concerned and thereafter the expense of repairing and maintaining such street shall be borne by the Municipality;

(b) in every other case, unless otherwise provided by any law in force at the time being, come under the control of the Government and the expense for repairing and maintaining such street shall be borne by the Government.”

Section 12 – Special provisions relating to widening or straightening of streets

“(1) Notwithstanding any provision contained in this Law, a competent authority may, with the object of widening or straightening any street, prepare or have prepared plans showing the width of such a street and the direction that it shall take.

(2) When any plans have been prepared under subsection (1), the competent authority shall deposit such plans in its office and shall also have a notice published in the Gazette and in one or more local newspapers and deposited in its office, open to inspection by the public at all reasonable times, for a period of seventy-five days from the date of the publication of the notice in the Gazette.

(3) At the expiry of the period set out in subsection (2), the plans shall, subject to any decision of the Supreme Court after a claim is filed as provided for in section 18 of this law, become binding on the competent authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans.”

Section 13 – Space between new and old alignments to be part of street

“(1) Where a permit is granted by a competent authority and such permit entails the new alignment of any street, in accordance with any plan which has become binding under section 12 of this law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of that street without the payment by the authority of any compensation whatsoever:

Provided that, if it is established that hardship would be caused if no compensation would be paid, the authority shall pay such compensation as may be reasonable having regard to all the circumstances of the case.

(2) When a permit is granted under subsection (1), the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remains unaltered.”Immovable Property (Tenure, Registration and Valuation) Law (Cap. 224) (as amended)

25.  The relevant sections of the above law, provide, where relevant (original English):

Section 2

“In the present Law ‘owner’ means the person entitled to be registered as the owner of any immovable property whether he is so registered or not.”

Section 8

“All public roads and such part of the foreshore as is not privately owned at the date of the coming into operation of this Law shall be vested in the State for the use of the public.”Compulsory Acquisition Law (No. 15/1962) (as amended)

26.  Section 10 of the Law on Compulsory Acquisition of Property, as particularly amended by Law no. 25/83, sets out the criteria and principles for determining fair and equitable compensation for the expropriation of property. The relevant paragraphs of that section provide as follows:

Section 10

“(α) the value of the property, shall, subject as hereinafter provided, be taken to be the amount which the property, if sold on the open market on the date of the publication of the notice of acquisition by a willing seller, might be expected to realise.

...

(η) in the case of the acquisition of immovable property the value of which has been affected by the imposition of any restrictions or limitations under the provisions of the Antiquities Law or any other Law, account shall be taken of any compensation which may be deemed payable in accordance with the provisions of Article 23 of the Constitution.”Limitation of Rights Law of 2012 (66(I)/2012) (as amended)

27.  The relevant sections of the above law provide, where relevant:

Section 3

“The limitation period begins to run when the basis of the cause of action has been completed:

Provided that, without prejudice to the provisions of sections 24 and 29, the limitation period shall begin to run as of 1 January 2016.”

Section 4

“Save as otherwise provided in any law, no action shall be brought after the expiration of ten years after the basis of the cause of action has been completed.”The Streets and Buildings (Amending) Regulations of 1976

28.  The relevant sections of the above Regulations provide, where relevant, as follows:

Section 5

“(1) Every application for a permit to erect, demolish or reconstruct any building or make any alteration, addition, or repair to any building (hereinafter referred to as ‘building permit’) shall be made in duplicate; it shall be signed by the owner or his/her duly authorised agent and shall be in such form as may be prescribed from time to time by the appropriate authority. ...”

Section 6A

“(8) On the issuing of any building permit with respect to a plot affected by a street‑widening scheme, the remaining part of the plot between such alignment and the road boundary shall be ceded to the public road and becomes part of such street without the payment by the appropriate authority of any compensation whatsoever:

Provided that, if it is established that hardship would be caused due to such concession, the authority shall pay such compensation as may be reasonable having regard to all the circumstances of the case.”Relevant case-lawCase-law concerning the automatic effect of section 13 of the Streets and Buildings Regulation Law (Cap. 96)

(a)   Domestic case-law

29.  In the case of Eleni Iordani Christodoulides v. the Republic of Cyprus ((1963) 2 C.L.R. 35), the Supreme Court (appellate jurisdiction) held that the appellant had suffered hardship because 45% of the total area of a plot of land owned by the appellant had been ceded by operation of law and had become part of the street. Specifically, the appellant had applied for a permit to erect a building on a plot which had been affected by a street-widening scheme; the permit was issued subsequently and therefore the area of the plot which had been affected by the street-widening scheme became part of the street, by operation of section 13 of Cap. 96. The appellant sought compensation for hardship, but the State authorities refused to award her compensation. The court noted that the cession of the plot of land to the State could not constitute a ground for complaint by the plaintiff as this had been effected by operation of the law and the municipal council had had no discretion in the matter. It further noted that through the mechanism of section 3, the loss of part of the property had been “unavoidable”.

The court then considered that any liability to pay compensation in a case of hardship dated from the issue of the building permit, but the complaint in that case could only be related to the decision of the municipal council not to pay any compensation. The court therefore held that the time for payment of compensation by the municipal council to the landowner affected had been after the owner had made out a case of hardship justifying compensation. The court held that the appellant had established a case of hardship justifying compensation.

30.  In Nemitsas Industries Ltd v. The Municipal Corporation of Limassol and Another (1967) 3 CLR 134, the Supreme Court noted, in particular, the following (original English):

“Section 13 of Cap. 96 provides that where a permit is granted by an appropriate authority and such permit entails a new alignment for any street, in accordance with any scheme which has become binding under section 12 of the Law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of the street. It is further provided that when such a permit is granted the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relative registrations to be effected.

The combined effect of sub-section (3) of section 12 and section 13 does not, in my opinion, authorize at all an appropriate authority – in this case the Limassol Municipality – to make an endorsement on a building permit, as complained of in this Case. Nor is such an endorsement among the possible conditions provided for, in relation to building permits, by means of section 9 of Cap. 96.”

31.  In the case of Neofytos Sofroniou and others v. the Republic of Cyprus ((1976) 3 C.L.R 124), which concerned recourses challenging the validity of street‑widening schemes and the constitutionality of section 12 of Cap. 96, the Supreme Court (appellate jurisdiction) held, among other things, that (original English):

“By the publication of the scheme under section 12, there is a restriction imposed regarding the right to build in the area affected by the new alignment. No part of the land is ceded to the public road, until there is an application to obtain a building permit and the building permit is granted.”

32.  In the case of Cathlin Georgallidou and another v. Attorney General of the Republic ((2001) 1 A.A.D. 365) the Supreme Court (appellate jurisdiction) noted, among other things, that:

“While section 13(1) establishes the obligation to cede the part of the land that is subject to a street-widening scheme upon the issuance of a building permit, or other permit, it simultaneously recognises the obligation to pay reasonable compensation if hardship is caused.”

33.  In the case of Mattheos Georgiou Makroselli v. the Republic of Cyprus and Mattheos G. Makrosellis Limited v. The Republic of Cyprus ((2017), 3 March 2017), the Supreme Court (appellate jurisdiction) held, among other things, that:

“[A]s correctly suggested by learned counsel for the appellants, the owner’s obligation to grant to the public the part affected by the street-widening scheme is implemented by operation of law. Under section 13(2) of Cap. 96 it is provided that when a permit is granted under subsection (1), the District Land Office shall, on the application of any interested person, cause the necessary consequential amendments to be made to the relevant entries and the entry as amended shall be deemed final, whether or not the certificate relating thereto remains unaltered. The modification, therefore, in the cadastral register, appears to be of formal significance (cf. Nemitsas Industries Ltd v. The Municipal Corporation of Limassol and Another (1967) 3 CLR 134), since in reality, as again correctly suggested by learned counsel for the appellants, with reference to [Serghides and Christoforou v. Cyprus, no. 44730/98, 5 November 2002], part of the affected property, with the implementation of the street-widening scheme, no longer belongs to the owner. In Serghides, in particular, it was held that Article 13 has automatic application where the owner of the affected land applies for a permit to develop her land and that the grant of a permit triggers the process, with the affected property becoming part of the public street.”

34.  In Attorney-General of the Republic v. Koulouppa, Civil Appeal no. 4/2014, 12 February 2020, the Supreme Court (appellate jurisdiction), stated:

“In line with Makroselli, the fact that a certificate of final approval had not been issued following the implementation of the building and planning permits and the modification of the part of the land that was affected by the street-widening scheme is irrelevant as the owner’s obligation to grant the affected part to the public is automatically effected by operation of the law. Therefore, the modification on the relevant cadastral register appears to be of formal significance only, since the part of the property affected by the street-widening scheme no longer belongs to the owner. With reference to what was said in [Serghides and Christoforou v. Cyprus, no. 44730/98, 5 November 2002], it was confirmed that Section 13 of Cap 96 applies automatically where the owner of the affected land has applied for a permit to develop his or her land and that the granting of a permit triggers the procedure, with the affected property becoming part of the public street. Through this prism it is even permissible and lawful to revoke the expropriation in the event that the Republic establishes the existence of a prior binding street‑widening scheme. As was held in the judgment in [Charalambous and others v. The Republic of Cyprus (2001) 3 A.A.D. 149] by the plenary of the Supreme Court, since the plot was expropriated in the context of a binding street-widening scheme and its legal status was changed by the will of the owner-appellants, it was not conceivable for the Republic to continue the expropriation procedure in respect of a parcel which no longer belonged to the appellants but had been granted with their consent to the Municipality of Paphos.”

(b)   Case-law of the European Court of Human Rights

35.  In the case of Serghides and Christoforou v. Cyprus, no. 44730/98, §§ 49 and 52-53, 5 November 2002, having regard to the parties’ arguments, the Court, considering the merits of the case, noted the following in relation to the automatic effect of section 13 of Cap. 96 being activated by the grant of a permit and automatically leading to deprivation of the property affected by a street-widening scheme:

“49. Section 13 has automatic effect in case the owner of a property affected by a notice of acquisition wishes to develop his land and asks for a permit to that effect. The grant of the permit activates the procedure and the affected property becomes part of the public domain, notably part of the street in the present case.

...

52. As a result, the Court considers that the applicant has been deprived of her property without any compensation, in breach of Article 1 of Protocol No. 1.

53. There has therefore been a violation of this Article.”The evolution of case-law concerning the recovery of compensation for land affected by a street-widening scheme and ceded to the State by the mechanism of section 13 of Cap. 96, whether or not it was subsequently followed by compulsory acquisition under the Compulsory Acquisition Law (L. 15/1962)

(a)   Relevant domestic case-law

36.  In Neofytos Sofroniou and others v. the Republic, (see paragraph 31 above) the Supreme Court (appellate jurisdiction) held that section 12 of the Streets and Buildings Regulation Law, Cap. 96, was not contrary to Article 23 of the Constitution because it resulted only in the imposition of restrictions or limitations on property rights and particularly on the use of such property for the purposes of building development which were absolutely necessary in the interests of town and country planning within the meaning of Article 23 § 3 of the Constitution. The court did not examine the issue of the constitutionality of section 13 of Cap. 96, as this had not been raised by the appellants, who had only challenged the validity of street-widening schemes under section 12 of Cap. 96.

37.  In Attorney General v. Kouloumou (1995) 1. A.A.D. 728 which concerned an appeal in a case of compulsory acquisition which previously fell under a scheme under the Antiquities Law, Cap. 13, the Supreme Court discussed for the first time the provisions of section 10(η) of the Compulsory Acquisition Law. While the case did not concern section 13 of Cap. 96, the court clarified for the first time that where a limitation imposed by the Antiquities Law or any other law preceded the compulsory acquisition of immovable property, the courts should take the pre-existing limitations into account when assessing compensation so that it would be just and reasonable in accordance with Article 23 of the Constitution. The obligation to take into account pre-existing limitations made on the basis of the Antiquities Law or any other law came from section 10(η) of the Compulsory Acquisition Law. The owner would, therefore, be compensated with a just and reasonable amount which represented the value of the property he had been deprived of by virtue of decisions taken by the administration in the public interest. It was no longer considered justifiable to reduce the compensation to be awarded for compulsory acquisition because of pre-existing limitations.

Reversing the first-instance decision, the court decided to award the applicants 172,430 Cypriot pounds (CYP) with interest. This case was subsequently used, mutatis mutandis, by the domestic courts when examining cases where a property had been affected by a street-widening scheme.

38.  By a judgment of 23 May 1997 in the case of Kyprianides and Others v. the Municipality of Nicosia, the Supreme Court ruled that no claim for compensation could be made when the disputed area was less than 15% of the original area. This judgment was subsequently confirmed in Attorney General v. F. Iacovides (Civil Appeal no. 9965, 29 September 1998).

39.  In Sylvia Panagioti Charalambous and Iliana Panagioti Charalambous v. The Republic of Cyprus ((2001) 3 A.A.D. 149), part of the appellants’ property had been affected by a street-widening scheme; an order for compulsory acquisition was issued and subsequently the appellants sought and obtained a building permit under section 3 of Cap. 96. The landowner sought damages resulting from the alleged expropriation of her property (παραπομπή). The compulsory acquisition order was subsequently revoked. The landowner then challenged the revocation of the order for compulsory acquisition. The Supreme Court (appellate jurisdiction) held that the legal status of the property had been changed with the acquiescence of the applicant when they ceded the part of the property affected by the street-widening scheme to the municipality. As a result, in dismissing the appeal the Supreme Court (appellate jurisdiction) considered that the State had rightly revoked the order for compulsory acquisition as the property had no longer been in the applicant’s possession but had been transferred to the municipality.

40.  Subsequently, in Cathlin Georgallidou and another v. Attorney General of the Republic (2001) 1 A.A.D. 365 – an appeal in a case of compulsory acquisition of immovable property that had previously been affected by a street widening scheme – the Supreme Court stated that given the market value of the compulsorily acquired part of the property on the open market, to which reference is made in section 10(α) of the Compulsory Acquisition Law, the parameters governing the determination of the amount of compensation pursuant to Article 23 § 4 (c) of the Constitution were based first and foremost on Article 23 itself, since the principle of compulsory acquisition and the corresponding obligation to pay “just and reasonable compensation” derived from it alone.

The court added that restrictions concerning a mandatory street-widening scheme fell within the provisions of section 10(η) of the Compulsory Acquisition Law as restrictions absolutely necessary in the interests of town and country planning under Article 23 § 3 of the Constitution and had been imposed under the provisions of “any other law”. Accordingly, the court considered that such restrictions had to be considered in calculating the compensation payable, given that it would be in fact payable according to Article 23 § 3 of the Constitution. The court also stated that the obligation to pay compensation specifically in relation to street-widening schemes had been regulated by section 13 of Cap. 96, which after 1960 should be read in conjunction with Article 23 § 3 of the Constitution. It added that section 13(1) of Cap. 96 had established the obligation to cede the part of the land subject to a street-widening scheme on the issue of a permit and the obligation to pay reasonable compensation to the owner if hardship were caused.

The court rejected the submission of the Government that a claim for compensation could not be accepted under section 13 of Cap. 96 or Article 23 § 3 of the Constitution when the disputed area had been less than 15% of the original area. It considered that no matter how small the decrease of the value of the property because of the limitations place on it, compensation was payable.

The court concluded that whether the appropriate legal provision was section 10(η) of the Compulsory Acquisition Law or section 13(1) of Cap. 96, the appeal would be successful. Under section 10 of the Compulsory Acquisition Law, as the case concerned the determination of compensation for compulsory acquisition and not a claim for compensation for the effects of a street-widening scheme pursuant to section 13(1), the value of the area compulsorily acquired under the street-widening scheme was not deductible. That was because compensation for the said diminution in value had been payable in accordance with Article 23 § 3 of the Constitution, which had been taken into account by virtue of section 10(η) of the Compulsory Acquisition Law in the calculation of the value of the property as affected by Cap. 96. According to the court however, the result would have been the same even if the matter had been examined under section 13(1) of Cap. 96. In such an event, section 13(1) would be adjusted to the terms of Article 23 § 3, thus no longer referring to “hardship” but to the “material decrease of the economic value of the property” leading to an identical approach to that of section 10(η) of the Compulsory Acquisition Law.

Ultimately, the court reversed the decision of the first-instance court, awarding the applicants the amount of 37,395 Cyprus pounds (CYP) in compensation.

41.  In Lena Z. Michaelidou v. Attorney General ((2005) 1 A.A.D. 657) the Supreme Court (appellate jurisdiction) rejected the appellant’s appeal for compensation (παραπομπή) for the compulsory acquisition of part of her property under the Compulsory Acquisition Law. The case concerned immovable property, part of which had been originally affected by a street‑widening scheme in 1980. When a building permit was obtained in 1988, that part of the property was ceded to the State, then registered as a public road and removed from the property register. The appellant had not challenged the terms of the street-widening scheme, nor had she sought damages under section 13 of Cap. 96. Later, in 1992 and 1993, a notice of acquisition and a compulsory acquisition order under the Compulsory Acquisition Law had been issued for a different part of the appellant’s remaining property. The appropriate domestic authority offered the applicant compensation for the part of the property being compulsorily acquired. The appellant also sought to recover compensation for the part of her property that had been ceded to the State. As to that, the court held that at the time of the notice of acquisition the part of the land affected by the mandatory street‑widening scheme had already become part of the public road and had a buyer or the appellant wished to further develop that property, they would have taken it for granted that the available area for development would not include the area that had been affected by the mandatory street-widening scheme. Consequently, the court held that the Government had correctly not included the area affected by the mandatory street-widening scheme in the compulsory acquisition under the Compulsory Acquisition Law and the land appraiser had correctly not included that area in the valuation of the land for the calculation of compensation. It also held that the case of Kouloumou had been properly distinguished since the area of the land affected by the street‑widening had already been registered as a public road and had been removed from the applicant’s title and as a result, at the time of acquisition there was no limitation within the meaning of section 10(η) of the Compulsory Acquisition Law.

42.  The case of Mattheos Georgiou Makroselli, cited in paragraph 33 above, concerned part of the appellants’ immovable property which had been affected by a street-widening scheme implemented by the issuing of a building permit under section 13 of Cap. 96 and which was subsequently also compulsorily acquired under the Compulsory Acquisition Law. The appellants had claimed compensation under the Compulsory Acquisition Law (παραπομπή) based on the market value of the part of the property that had already been taken for the street-widening scheme, claiming that they had continued to be its registered owners despite the terms of the building permit because, when the terms of the permits were implemented, no certificate of approval had been issued.

The Supreme Court (appellate jurisdiction) first reiterated that the obligation to pay compensation for land which had been affected by certain limitations prior to compulsory acquisition was imposed under section 10(η) of the Compulsory Acquisition Law in order to compensate the landowner justly and fairly for the loss of the value of the land as well as for the loss of the title itself.

The court clarified secondly that the fact that the appellants had not challenged the terms of the building permit under Article 146 of the Constitution had not affected their right to claim compensation. Nor could their compliance with the terms be interpreted to mean that they had given up their land without any expectation of compensation.

The court noted thirdly that the fact that no certificate of approval of the terms of the permit had been obtained under section 13 of Cap. 96 had not significantly distinguished the case from Lena Z. Michaelidou (see paragraph 41 above) as the terms of the permit had been implemented. According to the court, the landowner’s obligation to cede the part of the land affected by the street-widening scheme to the State had been effected by operation of law, as provided for by section 13(1) of Cap. 96. Under section 13(2) of Cap. 96, “[w]hen a permit is granted under subsection (1) the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remained unaltered”. Hence, according to the court, once the building permit had been issued, the affected part of the property no longer belonged to the original owner.

The court lastly clarified, without prejudice to the right of landowners to seek compensation for losses resulting from street-widening under section 13 of Cap. 96, that from the moment the terms of a street-widening scheme were implemented, the limitation specified in section 10(η) of the Compulsory Acquisition Law would no longer be applicable to a compulsory acquisition. The purpose of section 10(η) had not been to equate the compensation for an existing limitation with the compensation payable for compulsory acquisition. Its purpose was to avoid a reduction in compensation and not to change the requirements and nature of compensation under section 13(1) of Cap. 96. If the machinery of section 13(1) of Cap. 96 was not exercised, a right to compensation arose through section 10(η) of the Compulsory Acquisition Law, under the requirements set out in that section. For those reasons, the court dismissed the appeal.

43.  The case of Attorney-General of the Republic v. Koulouppa, cited in paragraph 34 above, concerned an appeal against the decision of a first‑instance court which had awarded a landowner compensation for the part of his land which was compulsorily acquired under the Compulsory Acquisition Law. Following its judgment in Makroselli, cited in paragraphs 33 and 42 above, the Supreme Court (appellate jurisdiction) allowed an appeal by the Government and reversed the decision of the first‑instance court, holding that the part of the land compulsorily acquired under the Compulsory Acquisition Law had previously been ceded to the State by operation of law, namely section 13 of Cap. 96, when the owner obtained a permit under that section. The court clarified that the owner could only ask for compensation on the basis of section 13 of Cap. 96 and not on the basis of the subsequent compulsory acquisition under the Compulsory Acquisition Law. The court also reiterated that, based on the pre-existing case-law, not challenging a mandatory street-widening scheme did not affect any claim for compensation.

(b)   Case-law of the European Court of Human Rights

44.  In Serghides and Christoforou (cited above), on 27 March 1978, part of the applicant’s land was affected by a street-widening scheme and was taken from her and became part of a public road under section 13 of Cap. 96 without her knowledge when her tenant, a petrol company, asked for a permit under that section relating to its petrol station, which had stood on the applicant’s land since 1959. Because of this, when a decision was taken in 1989 to widen the public road in front of the applicant’s plot, the part of the applicant’s land which had been taken from her in 1978 was not included in the procedure for compulsory acquisition under the Compulsory Acquisition Law, as amended (ibid., §§ 11 and 18), which is the only manner of acquisition specified by Article 23 § 4 of the Constitution. The applicant complained to the Court about a violation of Article 1 of Protocol No. 1 because she had been deprived of the enjoyment of part of her property since 1978 without compensation.

45.  The parties argued as follows:

“42. The Government maintain that the applicant was not deprived of her property within the meaning of Article 1 of Protocol No. 1. The interference in question amounted to a measure of control of the use of property. The legal effect of the publication of the street-widening scheme was merely to impose a restriction upon any future development of plot 565. The restriction could only take effect if and when the applicant applied for a permit for the development of that plot. In such a case, the development would not be unfettered; the affected part of the plot would become part of the street. The restriction in question was imposed by Cap 96, which at the material time was the key legislation controlling town planning and the development of immovable property. The street-widening scheme was enforced pursuant to the provisions of section 12 of Cap 96 in the public interest, namely the improvement of the existing road network. At the time, Grivas Digenis Avenue was becoming one of the most central streets of Nicosia. In assessing the proportionality of the interference, the Government recall that Article 23(3) of the Constitution provides for the payment of just compensation for any restriction or limitation which materially decreases the economic value of property. However, the applicant never applied for such compensation.

43. The applicant maintains that the Republic deprived her of 2,060 square meters of her land:

a) without following the conditions for compulsory expropriation under Article 23(2) and (4) of the Cyprus Constitution and the relevant provisions of Compulsory Acquisition Law 15/1962;

b) without complying with the principle of proportionality because it did not pay any compensation for the expropriation;

c) without giving her notice of the deprivation and of the subsequent change of her title deed, the Land Register and the Government Survey Plan; and

d) by changing her title deed and falsely declaring the expropriation to be a ‘compulsory acquisition ... by virtue of cession to the road’.

The applicant submits that she has been unjustifiably deprived of her property. The expropriation of property is always a deprivation whether the portion taken is small or large, and irrespective of its value. The Government confuse the part taken, which they ignore, and the remainder of the property. Moreover, the Republic to date continues to deprive her of the expropriated part of her land and prevents her from peacefully enjoying it as an owner.

44. The applicant further alleges that section 13 of the Streets and Buildings Regulation Law, Cap. 96, (hereafter ‘Cap 96’) contravenes Article 1 of Protocol No. 1. Section 13 of Cap. 96 provides a machinery which is completely different from a procedure of compulsory acquisition and which amounts to a direct and automatic expropriation without compensation because a permit is being given. The permit is used as an excuse to facilitate the street‑widening scheme without the public authorities paying compensation to the owners of the property. The fact that a permit is needed to activate the procedure cannot change the nature of the measure. The threat contained in section 13 prohibits the owner from doing anything with his land unless he transfers that part of the land affected by the street-widening scheme. Although expropriation under section 13 is effected automatically on the grant of a building permit, the street‑widening scheme may never be implemented, but Cap. 96 does not provide for the return of the property taken, whereas Article 23 § 5 of the Constitution does foresee the return of unused property compulsorily acquired.

45. She also submits that the decision of the Supreme Court, sitting as an appeal court and holding that she had no locus standi regarding the disputed land (which she had not transferred to her children), constituted a further violation of that Article, aggravated by the fact that the Supreme Court refused to examine the merits of the case. Finally, she claims that by deciding that section 13 was applicable to her property with the effect of merely limiting rather than depriving her of her rights, the Supreme Court, sitting as a first instance court, further violated Article 1 of Protocol No. 1.

46. Furthermore, the applicant contends that the principle of proportionality has not been respected. The value of the land taken was many times higher than the value of the minor building alterations made by Mobil Oil to the applicant’s property. The latter construction was not the permanent development of the land for the applicant and her children. What was built on the applicant’s plot by Mobil was only a fraction of what could have been built under the laws and regulations existing at that time.”

46.  Having examined the parties’ arguments, and with reference to the relevant legal principles, the Court held:

“47. The Court reiterates that Article 1, which guarantees in substance the right to property, comprises three distinct rules (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A No. 98-B, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule.

48. In the present case the Court notes that, by letter of 28 March 1978, the Municipality of Nicosia requested the Office of the Land Registry and Survey to register as part of the public domain, by virtue of section 13 (1) of Cap. 96, a part of plot 565 affected by the street-widening scheme. At some time between 1978 and 1979, the District Land Registry Office of Nicosia registered the disputed area of 2,060 square feet as part of Grivas Digenis Avenue.

49. Section 13 has an automatic effect in case the owner of a property affected by a notice of acquisition wishes to develop his land and asks for a permit to that effect. The grant of the permit activates the procedure and the affected property becomes part of the public domain, notably part of the street in the present case.

50. The [Compulsory Acquisition Law] provides for the personal notification of any person whose property is affected by a notice of acquisition. However, the Municipality of Nicosia did not expressly mention in the Notice of 30 March 1973 in the Official Gazette that plot 565 was affected by the street-widening scheme. The Government themselves concede that the plot number was not expressly set out in the Notice because it was not a corner plot. In a letter dated 24 July 1973 from the Municipality to the applicant’s tenant on the plot, Mobil Oil, it was stipulated that the plans of that scheme should be taken into account and implied that Mobil should respect the prescribed distance between one of its new constructions and the new alignment of the road. Although a copy of the official plan which showed the effect of the scheme was attached to the letter, that letter was never communicated to the applicant. The Government Survey Plan, the Land Register and the applicant’s ownership were amended without anyone notifying her. The Government allege that a new certificate of registration was issued by the Land Office for plot 565 in which the surface of the plot was stated to be 21,428 square feet. However, the new certificate was never sent to the applicant, who obtained a copy of the amended version in 1992.

51. The applicant became aware of the situation accidentally in 1989 and on 17 November 1989 lodged an application with the Supreme Court, sitting as a first instance court. On 27 February 1998 the Supreme Court, sitting as an appeal court, dismissed the applicant’s appeal on the basis that she had no longer had locus standi in respect of the disputed property because of the transfer of her property to her children in 1992. However, what the applicant actually transferred to her children was the undisputed part of her property. The disputed area had already been taken when the transfer was made and the applicant was no more at that time the registered owner of that area. Consequently, the transfer of the applicant’s property to her children could not entail a loss of her legal interest in respect of the disputed area for the purposes of Article 1 of Protocol No. 1.

52. As a result, the Court considers that the applicant has been deprived of her property without any compensation, in breach of Article 1 of Protocol No. 1.

53. There has therefore been a violation of this Article.”Other relevant case-law of the Court

47.  The judgments in Tsomtsos and Others v. Greece (15 November 1996, Reports of Judgments and Decisions 1996-V) and Katikaridis and Others v. Greece (15 November 1996, Reports 1996-V) concerned the applicants’ inability to obtain full compensation for the compulsory acquisition of parts of their properties fronting a road because of an irrebuttable presumption in the domestic law which provided that the benefit derived from road improvements amounted to sufficient compensation. The applicants complained that the presumption created by the law had prevented their obtaining compensation through the courts for their compulsorily acquired land. The Court considered that, while it was legitimate to take into account the benefit derived from road improvements when assessing the compensation due to property owners, the irrebuttable presumption applied by the domestic law had been too inflexible. As a result, it held that the applicants had had to bear an individual and excessive burden which could have been rendered legitimate only if they had had an opportunity to bring a case about their alleged loss in the courts and where appropriate, to receive commensurate compensation. The Court ultimately held that there had been a violation of Article 1 of Protocol No. 1 to the Convention.

48.  The above findings were later re-affirmed in Papachelas v. Greece ([GC], no. 31423/96, §§ 53-55, ECHR 1999-II) and Savvidou v. Greece (no. 38704/97, §§ 22-25, 1 August 2000).Relevant Council of Europe Documents

49.  In its Resolution CM/ResDH(2011)54 on the “Execution of the judgments of the European Court of Human Rights Serghides and Christoforou against Cyprus” the Committee of Ministers, having examined the measures taken by the respondent State, declared that it had exercised its functions under Article 46, paragraph 2, of the Convention in the case of Serghides and Christoforou, cited above, and had decided to close the examination of the case. The measures taken by the respondent State as stated in the Appendix to the Resolution entitled “Information on the measures to comply with the judgments in the case of Serghides and Christoforou against Cyprus” included the following:

“II. General measures

...

As regards the violation of Article 1, Protocol No. 1, as a result of the 2001 Supreme Court case of Catheleen Georgallides and others against A-G (Civil Appeal 10695, 27 March 2001), it has been established in Cypriot law that every individual has the right to reasonable compensation in cases of expropriation, irrespective of the method of expropriation.

 ...

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Cyprus has thus complied with its obligations under Article 46, paragraph 1, of the Convention.”

COMPLAINTS

50.  The applicant complained that the State had compulsorily acquired part of her property without compensating her, contrary to the provisions of Article 1 of Protocol No. 1 to the Convention.

THE LAW

51.  The applicant alleged a breach of Article 1 of Protocol No. 1 to the Convention 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.”The parties’ submissionsIncompatibility ratione temporis

52.  The Government argued that the Court should declare the complaint under Article 1 of Protocol No. 1 to the Convention incompatible ratione temporis with the provisions of the Convention. In their declaration made pursuant to the former Article 25 of the Convention, they had affirmed that they recognised “the competence of the European Commission of Human Rights to receive petitions ... in relation to any act or decision occurring or any facts or events arising subsequently to 31 December 1988 ...”. They did not deny that the proceedings complained of in this application had commenced after 31 December 1988. However, all the events which constituted the factual background to the application had arisen prior to that date: specifically, the affected part of the applicant’s property had become part of the street by operation of Cap. 96 on 8 July 1987 (see paragraph 8 above). The relevant statutory provisions had come into operation automatically as soon as the building permit had been issued on 8 July 1987. The procedure provided for by section 13(2) of Cap. 96 regarding the registration of title to the affected area was not an executory administrative act but merely an act of execution because the said area had already become part of the street on the date the permit had been issued. The applicant had been aware of the interference with her property as she had reserved her rights in relation to the terms of the building permit and the right to receive compensation in her letter of 10 August 1987 to the authorities (see paragraph 9 above). According to the Government, the present case could be distinguished from Serghides and Christoforou v. Cyprus (no. 44730/98, 5 November 2002), as in that case the applicant had only become aware of the compulsory acquisition of her property effectuated by section 13 of Cap. 96 accidentally, years later. On the contrary, in the present case the applicant had been fully aware of the interference with her property since the issuing of the building permit and had not provided any explanation as to why she had decided to claim compensation only in November 2003, sixteen years following its issue.

53.  The applicant contended that the present application concerned the continuing violation of her rights under Article 1 of Protocol No. 1 to the Convention by the Supreme Court’s decision in Civil Appeal no. 120/2011 of 30 May 2017 whereby she had been awarded nominal compensation in the amount of EUR 170.86 plus interest for the compulsory acquisition of part of her property. Both the payment of any compensation to the applicant and the acquisition itself had taken place following the appeal proceedings in 2017 and 2018, respectively, based on the compulsory acquisition order dated 11 October 2002 made under the Compulsory Acquisitions Law. The interference complained about had therefore taken place much later than 31 December 1988, the date on which the State recognised the jurisdiction of the European Commission of Human Rights.Exhaustion of domestic remedies

54.  Secondly, the Government argued that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They submitted that the applicant should have lodged a civil action with the domestic courts claiming compensation for hardship under section 13(1) of Cap. 96, or she could have argued that section 13(1) should be read in conjunction with Article 23 of the Constitution. The Government stated that according to the express provisions of Article 188 § 1 of the Constitution (see paragraph 23 above), the provisions of section 13(1) of Cap. 96 (which had been in force on the date of the coming into operation of the Constitution) could have been construed and applied by all courts in Cyprus in the light of Article 23 of the Constitution. According to the Government, with reference to, among other authorities, Mattheos Georgiou Makroselli (see paragraph 42 above), the existing available remedies allowed for an award of compensation that took into account the value of the site before and after the street alignment together with all the relevant circumstances of the particular case which could then be “sufficient to constitute reasonable compensation to the owner of the affected site”. The applicant could herself have also argued that section 13(1) should be read in conjunction with the terms of Article 23 of the Constitution with a good prospect of success. In addition, the Government asserted that the applicant could also have filed a civil action alleging a violation of her right to property under Article 1 of Protocol No. 1 to the Convention and Article 23 of the Constitution. Moreover, the applicant had refrained from challenging the building permit or the street-widening scheme and had developed her land in accordance with the terms of the building permit, in essence acquiescing to the terms imposed.

Lastly, with reference to, among other things, the Limitation of Actionable Rights Law 66(I)/2013 (see paragraph 27 above) the Government argued that if a civil action were to be brought today on the basis of section 13(1) of Cap. 96 alone, or in conjunction with Article 23 of the Constitution, it would be for the domestic courts to decide whether the action had become statute barred or not.

55.  The applicant argued that the remedies suggested by the Government related to the legal action she could have taken prior to the compulsory acquisition of the affected part of her property under the notice and subsequent acquisition order. She argued that those remedies had no longer been available to her because the Supreme Court’s decision in Civil Appeal no. 120/2011 of 30 May 2017 had been final and had set the amount of compensation for the compulsory acquisition. Any domestic court to which she could have applied in the future, under either section 13(1) of Cap. 96 alone or that provision in conjunction with Article 23 of the Constitution, would be bound by the conclusions of the Supreme Court in Civil Appeal no. 120/2011. As such, it would be illogical to expect her to have exhausted the remedies suggested by the Government at that stage, and that process could also have taken another ten or more years (as had the proceedings for compensation for the compulsory acquisition of her land). She further argued that such claims “[might] be statute barred due to the Limitation of Actionable Rights Law 66(I)/2012, a question that [would] be left to the domestic courts to determine in proceedings (in the event that the claim [was] allowed)”.

In addition, the applicant argued that in the light of the statements contained in order no. 1172, which revoked the acquisition order on the basis that her property “was not necessary for the general interest purposes mentioned in notifications 353/81-238/85” (see paragraph 11 above), it would not be reasonable to expect her to have initiated proceedings for compensation under section 13 of Cap. 96. Instead, she had initiated proceedings for compensation after the contested part of her property had been compulsorily acquired again under the acquisition order dated 11 October 2002 (see paragraph 14 above), which the applicant insisted had violated her rights under Article 1 of Protocol No. 1 to the Convention. In addition, the applicant claimed that as she had already pursued one remedy, namely a claim for compensation for the compulsory acquisition – and so essentially the deprivation – of her property under the Compulsory Acquisition Law, she had not been required to pursue the remedy under section 13(1) of Cap. 96, which had essentially the same purpose.

Lastly, she argued that she could not ask for compensation under section 13(1) of Cap. 96 alone or in conjunction with Article 23 § 3 of the Constitution because she considered the taking of her property to be a deprivation and not a limitation, whereas Article 23 § 3 only made reference to limitations of property.The Court’s assessment

56.  The Court considers at the outset that the issue of compatibility ratione temporis raised by the Government is closely linked to the issue of non-exhaustion. The applicant argued that she had pursued the correct domestic remedy, namely a claim for compensation under the Compulsory Acquisition Law (παραπομπή) and as a result, she had sustained a continuing violation of her rights under Article 1 of Protocol No. 1 to the Convention by the Supreme Court’s decision in Civil Appeal no. 120/2011 of 30 May 2017. The Government argued to the contrary that the interference with the applicant’s property had arisen when the building permit was issued and that, had the applicant wished to recover compensation, she should have done so under section 13 of Cap. 96 alone or in conjunction with Article 23 of the Constitution. Consequently, the Court will examine the Government’s preliminary objection of non-exhaustion first.

57.  The general principles regarding exhaustion of domestic remedies have been summarised in the case of Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

58.  Mere doubts on the part of an applicant as to the prospects of success of a particular remedy which is not obviously futile are not a valid reason for failing to exhaust that avenue of redress (ibid., §§ 74 and 84).

59.  The Court notes firstly that according to the well-established domestic case-law, land affected by a street-widening scheme is automatically ceded to the State when a building permit is issued (see paragraphs 29-34 above). This was confirmed in Serghides and Christoforou (cited above, § 49). As such, the Court cannot accept the applicant’s position that the remedies suggested by the Government could only have been used prior to the compulsory acquisition of her property. The Court considers that the compulsory acquisition did not affect her right to seek compensation under section 13 of Cap. 96. In Eleni Iordani Christodoulides (see paragraph 29 above) the Supreme Court held that liability to pay compensation under section 13 arose at the date of issue of the building permit. In addition, as seen in Sylvia Panayioti Charalambous and Iliana Panagioti Charalambous (see paragraph 39 above), when part of a property is affected by a street-widening scheme and subsequently a building permit is requested and issued in conformity with that scheme, any compulsory acquisition notice under the Compulsory Acquisition Law is an empty shell, as the land has already been ceded to the State by operation of law at the time the building permit was issued and has become the property of the State. In view of the above, the Court considers that it had been open to the applicant to apply for compensation under section 13 of Cap. 96 from the moment the building permit was issued and the applicant, being represented by a lawyer, ought to have been aware of this before filing her claim for compensation under the Compulsory Acquisition Law in 2003.

60.  The above-mentioned principles were later affirmed in Mattheos Georgiou Makroselli (see paragraph 42 above), on which the Supreme Court in the applicant’s case relied to reiterate that the owner of an area of property which had been previously acquired for street-widening and had subsequently been compulsorily acquired could not refrain from claiming compensation for hardship under section 13(1) of Cap. 96 and later apply to the court to claim compensation based on the market value of the property at the time of the subsequent compulsory acquisition (see paragraph 20 above). Similar reasoning was also applied in Koulouppa (see paragraphs 34 and 43 above).

61.  As regards the adequacy of compensation awarded under section 13 of Cap. 96, and whether it constitutes an effective remedy for Convention purposes, the Court notes that section 13 of Cap. 96 had originally been restrictively interpreted and applied, to the extent that claims for compensation under that section could not be made when the disputed area was less than 15% of the original area (see paragraph 38 above). In view of the case-law at the time, the Court in L. Serghides and Others v. Cyprus (dec.), no. 44730/98, 22 May 2001 considered that any application to the domestic courts for compensation in respect of an allegedly illegal deprivation of property was bound to fail and therefore dismissed the Government’s preliminary objection of non-exhaustion.

62.  However, the restrictive interpretation and application of section 13 of Cap. 96 have shifted over time.

63.  Firstly, in Cathlin Georgallidou and another v. Attorney General of the Republic ((2001) 1 A.A.D. 365) (see paragraph 40 above), the Supreme Court dismissed the Government’s submission that since the disputed area had not exceeded 15% of the original area no compensation should be awarded. It held that, regardless of how much the value of the property had been decreased by the compulsory acquisition, compensation could be awarded. The right to compensation is thus no longer determined by a specific percentage of land (see paragraph 40 above). It is therefore evident that the case-law relied on by this Court in L. Serghides and Others v. Cyprus (dec.) (cited above) to dismiss the Government’s preliminary objection has changed. The current approach followed by the domestic courts is in line with the Court’s case-law in which the Court has found violations arising from an irrebuttable presumption that the benefit derived from road improvements would be sufficient compensation for the compulsory acquisition of land (see paragraphs 47 and 48 above).

64.  Secondly, following the judgment in Cathlin Georgallidou, the Supreme Court held that the obligation to pay compensation for land acquired for street-widening schemes had been regulated by section 13 of Cap. 96, which after 1960 should be read in conjunction with Article 23 § 3 of the Constitution. Such an obligation arose, according to the said case-law, in all cases where the economic value of any property was materially decreased because of the imposition of restrictions or limitations on the property resulting from a street-widening scheme.

65.  Thirdly, in Serghides and Christoforou (cited above) the Court considered that the first applicant in that case had been deprived of her property in violation of Article 1 of Protocol No. 1 to the Convention. In particular, in paragraphs 49 and 52 of Serghides and Christoforou (cited above), the Court found that the operation of section 13 of Cap. 96 was a mechanism involving automatic deprivation and compulsory acquisition (see paragraph 46 above). This was despite the fact that there had been no compulsory acquisition of her property under the Compulsory Acquisition Law but rather the cession of the property to the State under section 13 of Cap. 96 when the tenant on the applicant’s land had applied for a building permit. As the Government reported, in the present case measures have been taken to ensure compliance with the judgments in Serghides and Christoforou (ibid.), following Cathlin Georgallidou (cited above) and everyone now has the right to reasonable compensation, irrespective of the method of expropriation (see paragraph 49 above). The applicant in the present case could have followed Serghides and Christoforou and asked for just and equitable compensation on the basis of section 13 of Cap. 96 construed and applied with such modifications by virtue of Article 188 §§ 1 and 5 of the Constitution as might be necessary to bring it into conformity with Article 23 §§ 2 and 4 of the Constitution. The applicant in Serghides and Christoforou was successful and was awarded EUR 60,000 in respect of pecuniary damage and EUR 12,000 in respect of non-pecuniary damage. The applicant in the present case therefore had a precedent of the Court available which could have been referred to in order to ask for compensation for the deprivation of her property.

Therefore the Court cannot accept the applicant’s argument that she could not have asked for compensation under section 13(1) of Cap. 96 alone or in conjunction with Article 23 § 3 of the Constitution because she considered the taking of her property to be a deprivation which fell under Article 23 § 4 of the Constitution and not a limitation, whereas Article 23 § 3 only made reference to limitations of property (see paragraph 55 above). As has been said above, the Court in Serghides and Christoforou (cited above) held that the mechanism of section 13 was a mechanism of deprivation and therefore the applicant in the present case, instead of arguing the opposite based on certain Cypriot case-law, could have asked for compensation under section 13(1) interpreted and applied in conjunction with the terms of Article 23 §§ 2 and 4 of the Constitution and on the basis of Serghides and Christoforou (cited above). But even if the mechanism of section 13 were considered a limitation or restriction rather than a deprivation, the applicant could still have asked for compensation under section 13(1) interpreted and applied in conjunction with the terms of Article 23 § 3 of the Constitution, on the basis of Cathlin Georgallidou. The Court in Serghides and Christoforou, after hearing full argument from both parties, made it clear that the application of the mechanism of section 13 amounted to deprivation of property and not to a restriction. The applicant did not ask the Court to depart from Serghides and Christoforou and the Court in the present case sees no good reason to depart from its previous case-law.

66.  To sum up, the Court considers that the only remedy available to the applicant had been an application under section 13(1) of Cap. 96, whether alone or in conjunction with Article 23 of the Constitution, seeking compensation for the part of her property that had been affected by the street‑widening scheme, as explained above. The Court is troubled that while the Republic of Cyprus automatically became the owner of the part of the applicant’s property claimed for use as a public road on 8 July 1987 when the building permit was obtained (section 13(2) of Cap. 96 and sections 2 and 8 of Cap. 224), it nevertheless proceeded to acquire that part under the Compulsory Acquisition Law when the land no longer belonged to the applicant but to the Republic itself. The Court is also troubled by the Supreme Court’s decision to award the applicant EUR 170.85 without explaining the legal and factual basis of that decision, having found that the applicant had not used the appropriate domestic remedy (namely section 13 of Cap. 96) but at the same time condemning her to pay costs, in view of the fact that the appeal lodged by the Government had been upheld. However, this does not change the Supreme Court’s finding that the owner of the area of property which had been previously ceded for street-widening and had subsequently been compulsorily acquired could not refrain from claiming compensation for hardship under section 13(1) of Cap. 96 and later apply to the court, irrespective of the time and circumstances, to claim damages based on the market value of the property at the time of the subsequent compulsory acquisition (see paragraph 20 above). Even if the State had issued a notice of acquisition of the applicant’s land under the Compulsory Acquisition Law, the applicant had been aware of the fact that her property had been affected by a street-widening scheme and that she had lost that part of her property when she had voluntarily applied for and obtained a building permit. From that moment, the applicant ought to have applied for compensation under section 13 of Cap. 96 read in conjunction with Article 23 of the Constitution. In view of the case-law developments which took place even prior to 2003, when the applicant applied to the domestic courts, it must have been apparent that the only remedy available to the applicant was a claim for compensation under section 13 of Cap. 96 in conjunction with Article 23 of the Constitution, and there is no evidence that had she made such a claim she would not have been awarded reasonable compensation.

67.  In view of the above, the objection that the relevant effective domestic remedy was not used by the applicant in the present case is therefore well‑founded. Consequently, the application must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

68.  In view of this conclusion, it is not necessary for the Court to examine the various arguments submitted to it concerning the Government’s objection that the subject-matter of the application was outside the Court’s jurisdiction ratione temporis.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2023.

 Milan Blaško Pere Pastor Vilanova
 Registrar President

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