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FOURTH
SECTION
CASE OF ANTHOUSA IORDANOU v. TURKEY
(Application
no. 46755/99)
JUDGMENT
(merits)
STRASBOURG
24
November 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Anthousa Iordanou 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 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46755/99) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Greek national, Mrs Anthousa P. P. Iordanou
(“the applicant”), on 17 December 1998.
- The
applicant, who had been granted legal aid, was represented by Mr P.
Erotocritou, a lawyer practising in Nicosia. The Turkish Government
(“the Government”) were represented by their Agent,
Mr Z.M. Necatigil.
- The
applicant alleged, in particular, that the Turkish occupation of the
northern part of Cyprus had deprived her of her properties.
- 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).
- By
a decision of 25 June 2002 the Court declared the application partly
admissible.
- 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
- The
applicant was born in 1934 and lives in Nicosia.
- The applicant lived in her family home in Lapithos (the
biggest village in the Kyrenia district of northern Cyprus) until
1963, when she married and moved to her husband's house in a
neighbouring village. Her mother came from Sysklipos, another village
near Lapithos, where she owned land. The applicant claimed to have
acquired the ownership of the family property in the two villages, as
well as a right to draw a certain amount of water from a spring in
Sysklipos.
- The Government challenged the applicant's property
claims, particularly as regarded the properties in Sysklipos, as they
had evidence that it had belonged to other persons. The applicant
replied that those other persons were her parents who had donated
these properties to her.
- On 27 November 1973 the applicant applied to the
Kyrenia Land Registry Office for a permit to divide one of her plots
of land in Lapithos into sixteen building sites. She alleged that the
issuing of the permit would have significantly increased the value of
her land.
- However,
this planning procedure was not completed because, due to the 1974
Turkish intervention, the applicant and her family had been forced to
leave all their property and possessions and move to Limassol in
southern Cyprus. The applicant was thereby deprived of her property
rights, all her property being located in the area which was under
the occupation and control of the Turkish military authorities. The
latter had prevented her from having access to and using her
property.
- Attached
to her observations of 4 September 2002, the applicant produced a
certificate of affirmation of ownership of Turkish-occupied immovable
properties, issued on 12 August 2002 by the Departments of Lands and
Surveys of the Republic of Cyprus, and an affidavit, signed by
herself, in which she declared that she owned 8 pieces of land in
Lapithos “all on the mountain slope, very suitable for building
purposes”. According to the above mentioned certificate of
affirmation of ownership, the following properties were owned by Mrs
Iordanou Iordani Anthousa, daughter of Mr Polykerpos Panagiotou:
Lapithos
village – Agia Paraskevi and Agia Anastasia:
(a)
Land certificate no. 1613 of 22 April 1971, plot no. 199 of
sheet/plan XI/22 (Mantres tou Kazeli), with a total extent of
4,683m²; share: whole; on this plot of land there was a small
house for shepherds and two shelters for the animals;
(b)
Land certificate no. 1459 of 27 April 1971, plot no. 331 of
sheet/plan XI/23 (Persterkonas), with a total extent of 25,753 m²;
share: whole; use: field with trees;
(c)
Land certificate no. 2312 of 27 April 1971, plot no. 51 of sheet/plan
XI/31 (Kaminia), with a total extent of 3,679 m²; share: whole;
use: field with trees;
(d)
Land certificate no. 1623 of 27 April 1971, plot no. 201 of
sheet/plan XI/22 (Syrtaros), with a total extent of 16,723 m²;
share: whole; use: field with trees;
(e)
Sheet/plan 11/23W.1.E.2, plot no. 53; this plot comprised running
water and was registered in the name of the applicant for the 1/120
share (equivalent to 3 hours continuous flow fortnightly every 15
days);
(f)
Land certificate no. 2774 of 27 April 1971, plot no. 2 of sheet/plan
XI/31 (Livadi tou Kolymbou), with a total extent of 89,457 m²
(registered for 1/24 share in the name of the applicant); use: field;
(g)
Land certificate no. 2744 of 27 April 1971, plot no. 133 of
sheet/plan XI/30 (Kolymbes Livadiou), with a total extent of 110,704
m² (registered for 1/96 share in the name of the applicant);
use: field;
(h)
Land certificate no. 2760 of 27 April 1971, plot no. 1 of sheet/plan
XI/31 (Livadi), with a total extent of 227,427 m² (registered
for 1/96 share in the name of the applicant); use: field with trees;
Sysklipos
village (according to a report attached to the applicant's
observations, these properties were registered in the name of the
applicant by declaration of gift from her mother Anastasia Polycarpou
Panayiotou):
(i)
Land certificate of 24 July 1985, plot no. 341 of sheet/plan XI/47
(Pappares), with a total extent of 21,424 m²; share: whole; use:
field;
(l)
Land certificate of 24 July 1985, plot no. 357 (united with plot
no. 368) of sheet/plan XI/47 (Diplopotama), with a total extent
of 9,031 m²; share: whole; use: field with trees;
(j)
Land certificate of 24 July 1985, plot no. 370 of sheet/plan XI/47
(Diplopotama), with a total extent of 8,362 m²; share: whole;
use: field.
- Following
a request from the Court, in a sworn affidavit of 24 September
2009 the applicant declared that she was the daughter of Polykarpos
Panayioti, who had died on 27 December 1975, and of Anastasia
Panayiotou, who had died on 12 January 1989. Her mother's father name
was Chistodoulos. As it was customary in Cyprus to call people by
their first name, followed by their surname and by their father's or
husband's name, her mother was also called Anastasia Christodoulou
Panayiotou or Anastasia Polykarpou Panayiotou. Therefore, Anastasia
Panayiotou and Anastasia Christodoulou were the same person. In
support to her affidavit, the applicant produced a copy of her
parents' death certificates and identity cards.
- She
further produced the following documents:
-
three certificates of affirmation of ownership of Turkish-occupied
immovable properties issued on 15 September 2009 by the Republic of
Cyprus, in which it was stated that the applicant was the owner of
the properties described in paragraph 12 (i), (l) and (j) above;
-
three search certificates concerning Turkish-occupied immovable
properties issued on 15 September 2009 by the Republic of Cyprus, in
which it was stated that the properties described in paragraph 12
(i), (l) and (j) above were transferred to the applicant on 24 July
1985 by Mrs Anastasia Panayiotou.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility for
non-exhaustion of domestic remedies and lack of victim status. The
Court observes that these objections are 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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that since July 1974, Turkey had prevented her
from exercising her right to the peaceful enjoyment of her
possessions.
She invoked Article 1 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.”
- The
Government disputed this claim, submitting that there was no evidence
whatsoever of the applicant's ownership of property, particularly
regarding the land in Sysklipos. Those plots of lands belonged to
another person, Mrs Anastassia Christodoulou, with the exception of
plot no. 368 (sheet/plan XI/47), which belonged to a certain Irini
Hj. Christofi. In any event, the situation regarding the applicant's
present inability to have access to property in northern Cyprus was
the inevitable consequence of the political state of affairs on the
island and of the existence of the inviolable United Nations Buffer
Zone; until an overall settlement of the Cyprus problem, Convention
rights were, of necessity, restricted in the general interest
envisaged by Article 1 of Protocol No. 1.
- The
applicant reiterated that Mrs Anastassia Christodoulou was her mother
(see paragraph 13 above) and alleged that no information was
available about Irini Hj. Christofi.
- The
Government of Cyprus observed that, in the appendices to her
application, the applicant had given details of the relevant
properties. The land registration certificates produced by the
applicant confirmed her right of property. The respondent Government
failed to provide any legal system by which the applicant's ownership
could be recognised. The applicant's name had been removed from the
property register and replaced by that of the “Turkish Republic
of Northern Cyprus” (the “TRNC”).
- The
Government of Cyprus further noted that the present case was similar
to that of Loizidou ((merits), 18 December 1996, Reports of
Judgments and Decisions 1996-VI), where the Court had found that
the loss of control of property by displaced persons arose as a
consequence of the occupation of the northern part of Cyprus by
Turkish troops and the establishment of the “TRNC”, and
that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
- The
Court first notes that the documents submitted by the applicant (see
paragraphs 12-14 above) provide prima facie evidence that she
had a title of ownership over the properties at issue. In particular,
the respondent Government failed to produce convincing evidence in
rebuttal, and/or to challenge the applicant's statement that Ms
Anastasia Polycarpou Panayiotou was her mother; moreover, the
Government's statement that plot no. 368 (see paragraph 12 (l)
above) belonged to a certain Irini Hj. Christofi is contradicted by
the certificates of affirmation of ownership and by the search
certificates issued on 15 September 2009 by the Republic of Cyprus
(see paragraph 14 above). Under these circumstances, the Court
considers that the applicant had a “possession” over the
properties claimed in the present application within the meaning of
Article 1 of Protocol No. 1.
- 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.”
- In
the case of Cyprus v. Turkey ([GC], no. 25781/94, ECHR
2001-IV) 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.”
- 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).
- 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 her properties as
well as any compensation for the interference with her property
rights.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Damage
1. The parties' submissions
(a) The applicant
- In
her just satisfaction claims of 4 September 2002, the applicant
requested 207,000 Cypriot pounds (CYP –
approximately 353,680 euros (EUR) for pecuniary damage. She relied on
an expert's report assessing the value of her loss which included the
loss of annual rent collected or expected to be collected from
renting out her properties, plus interest from the date on which such
rents were due until the day of payment. The rents claimed were for
the period dating back to January 1987, when the respondent
Government accepted the right of individual petition, until 2002. The
applicant did not claim compensation for any purported expropriation
since she was still the legal owner of the properties.
- The
starting point of the valuation report was the market value of each
property in 1974. Depending on their use and building potentialities,
the rent which could have obtained from the applicant's plots of land
were fluctuating from 3 to 6 percent of their market value. Thus, the
total annual rent which could have been obtained in 1974 was CYP
2,458 (approximately EUR 4,200). The expert took into account also
the fact that the applicant was entitled to the revision of the rent
at a compound interest of 5 percent per annum and to compound
interest for delayed payment of 8 percent per annum.
- On
22 January 2008, following a request from the Court for an update on
the developments of the case, the applicant submitted updated claims
for just satisfaction, which were meant to cover the loss of use of
the properties from 1 January 1987 to 31 December 2007. She produced
a revised valuation report, which, on the basis of the criteria
adopted in the previous report, concluded that the whole sum due for
the loss of use was CYP 375,000 (approximately EUR 640,725).
- The
applicant did not make any request for non-pecuniary damage.
(b) The Government
-
In reply to the applicant's just satisfaction claims of 4 September
2002, the Government submitted that Turkey had no access to lands
records in the “TRNC” and could not therefore have
sufficient knowledge about the applicant's alleged immovable
properties' value.
- The
properties left by the applicant had been considered abandoned and
had been expropriated under the laws of the “TRNC”. It
was impossible for Turkey to adopt any domestic provision regarding
the expropriations made by another independent State. It should also
be taken into account that during the last decades the landscape in
northern Cyprus had considerably changed and that these changes had
affected the applicant's properties. The issue of reciprocal
compensation for Greek-Cypriot property left in the north of the
island and Turkish-Cypriot property left in the south was very
complex and should be settled through negotiations between the two
sides rather than by adjudication by the European Court of Human
Rights, acting as a first-instance tribunal and relying on the
reports produced by the applicant side only.
- Challenging
the conclusions reached by the Court in the Loizidou case
(see judgment (just satisfaction) of 28 July 1998,
Reports 1998-IV), the Government considered that in cases
such as the present one, no award should be made by the Court under
Article 41 of the Convention. They underlined that the applicant's
inability to have access to her properties depended on the political
situation of the island and, in particular, on the existence of the
UN recognised cease-fire lines. If Greek-Cypriots were allowed to go
to the north and claim their properties, chaos would explode on the
island; furthermore, any award made by the Court would undermine the
negotiations between the two parties.
- The
Government filed comments on the applicant's 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. 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.
- The
Government further noted that the applicant had shared properties and
that it was not proven that her 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
applicant shown that the rights of the said co-owners under domestic
law had been respected.
- The
Government also 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 had instead proceeded on the
assumption that the property market would have continued to flourish
with sustained growth during the whole period under consideration.
- 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 the option to sell the property
to the State, thereby relinquishing title to and claims in respect of
it.
- 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 plots nos. 199,
331, 51, 201, 53 and 133 (see paragraph 12 (a), (b), (c), (d), (e)
and (g) 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 applied to
the Immovable Property Commission, the latter would have offered CYP
68,539.26 (approximately EUR 117,106) to compensate the loss of use
and CYP 72,992.96 (approximately EUR 124,715) 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 12 above was:
- for
the property under (a): CYP 525 (approximately EUR 897);
- for
the property under (b): CYP 7,700 (approximately EUR 13,156);
- for
the property under (c): CYP 550 (approximately EUR 939);
- for
the property under (d): CYP 1,250 (approximately EUR 2,135);
- for
the property under (f): CYP 223 (approximately EUR 381);
- for
the property under (g): CYP 89.3 (approximately EUR 152);
- for
the property under (i): CYP 800 (approximately EUR 1,366);
- for
the property under (l): CYP 415 (approximately EUR 709);
- for
the property under (j): CYP 375 (approximately EUR 640).
No
estimate was given for the property under (e) and (h).
- Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicant exchange of her properties with
Turkish-Cypriot properties located in the south of the island.
2. The third party intervener
- The
Government of Cyprus fully supported the applicant's updated claims
for just satisfaction.
3. The Court's assessment
- 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 31 and 34 above) is, in substance, an objection
of incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. In any event, the Court cannot but
confirm its finding that the applicant had a “possession”
over the properties in Lapithos and Sysklipos within the meaning of
Article 1 of Protocol No. 1 (see paragraph 21 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary damage is
not ready for decision. It observes, in particular, that the parties
have failed to provide reliable and objective data pertaining to the
prices of land and real estate in Cyprus at the date of the Turkish
intervention. This failure renders it difficult for the Court to
assess whether the estimate furnished by the applicant of the 1974
market value of her 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 (Rule 75 § 1 of the
Rules of Court).
B. Costs and expenses
- Relying
on a bill from her representative, the applicant sought EUR 38,047.5
for the costs and expenses incurred before the Court and CYP 2,000
(approximately EUR 3,417) for the costs of the expert reports
assessing the value of her properties.
- The
Government did not comment on this point.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant.
FOR THESE REASONS, THE COURT
- Dismisses by six votes to one the Government's
preliminary objections;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written observations on
the matter and, in particular, to notify the Court of any agreement
that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Karakaş
is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE KARAKAŞ
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 a
violation of Article 1 of Protocol No. 1 of the Convention, for the
same reasons as those mentioned in my dissenting opinion in the case
of Alexandrou v. Turkey (no. 16162/90, 20 January 2009).
