Information Note on the Court’s case-law No. 92
December 2006
Xenides-Arestis v. Turkey (just satisfaction) - 46347/99
Judgment 7.12.2006 [Section III]
Article 41
Just satisfaction
Applicant hindered from returning to her home and property in northern Cyprus not required, once the Court had already decided on the merits of her case, to apply to new domestic Commission in order to seek reparation for damages
Facts: The applicant, a Cypriot national of Greek-Cypriot origin, owns half a share in a plot of land in Famagusta (northern Cyprus). One of the houses on the land was her home, where she lived with her husband and children, and the rest of the property was either used by members of the family or rented out. She also owns part of a plot of land with an orchard. The applicant has been prevented from living in her home or using her property since 1974, as a result of the continuing division of Cyprus since the conduct of military operations in northern Cyprus by Turkey that year.
In 2003 the “Parliament of the Turkish Republic of Northern Cyprus” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”. A commission was set up with a mandate to deal with compensation claims.
It its decision on admissibility of 14 March 2005 the Court found that the remedy proposed under the preceding compensation law, “Law no. 49/2003” could not be regarded as an “effective” or “adequate” means for redressing the applicant's complaints. The Court delivered its principal judgment in the case on 22 December 2005 (see Case-Law Report/Information Note No 81), finding continuing violations of Article 8 of the Convention and Article 1 of Protocol No. 1. It further ordered, under Article 46 of the Convention, that Turkey should introduce a remedy, within three months, which should secure, in respect of the Convention violations identified in the judgment, genuinely effective redress for the applicant as well as in relation to all similar applications pending before the Court, in accordance with the principles for the protection of the rights laid down in Article 8 and Article 1 of Protocol No. 1. Such a remedy should be available within three months and redress should occur three months after that. Pending the implementation of general measures, the Court adjourned its consideration of all similar applications.
On the day of the delivery of the Court's principal judgment the “TRNC” authorities enacted the “Law for the Compensation, Exchange and Restitution of Immovable Properties” (Law no. 67/2005). The authorities subsequently enacted a By-Law under Law no. 67/2005, which entered into force on 20 March 2006. A commission (the “Immovable Property Commission”) was set up under Law no. 67/2005 to examine applications under that law and decide on the restitution, exchange of properties or payment of compensation. There is a right of appeal to the “TRNC” High Administrative Court.
Law: In its judgment with regard to Article 41 the Court welcomed the steps taken by the Turkish Government in an effort to provide redress for the violations of the applicant's Convention rights as well as in respect of all similar applications pending before it. The Court noted that the new compensation and restitution mechanism, in principle, had taken care of the requirements stated in its decision on admissibility and its principal judgment. The Court noted however that the parties in the present case had failed to reach an agreement on the issue of just satisfaction, where it would have been possible for the Court to address all the relevant issues concerning the effectiveness of the remedy in detail. The Court could not accept the Government's argument that the applicant should now be required, when the Court had already decided on the merits, to apply to the new Commission in order to seek reparation for damages. It therefore proceeded to determine the compensation to which the applicant was entitled in respect of losses emanating from the denial of access and loss of control, use, and enjoyment of her property and to grant her EUR 800,000 euros in respect of pecuniary damage, EUR 50,000 in respect of non-pecuniary damage as well as costs and expenses.
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This summary by the Registry does not bind the Court.
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