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FOURTH
SECTION
CASE OF DIOGENOUS AND TSERIOTIS v. TURKEY
(Application
no. 16259/90)
JUDGMENT
(merits)
STRASBOURG
22
September 2009
FINAL
01/03/2010
This
judgment may be subject to editorial revision.
In the case of Diogenous and Tseriotis 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 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16259/90) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Cypriot nationals, Mrs Anna Diogenous and
Mrs Pandora Tseriotis (“the applicants”), on 23
February 1990.
- The
applicants were represented by Mr A. Demetriades, a lawyer practising
in Nicosia. The Turkish Government (“the Government”)
were represented by their Agent, Mr Z.M. Necatigil.
- The
applicants alleged that the Turkish occupation of the northern part
of Cyprus had deprived them of their home and 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 8 June 1999 the Court declared the application
admissible.
- The
applicants 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
applicants, who are sisters, were born in 1947 and 1952 respectively
and live in Nicosia.
- The
applicants alleged that their mother, Mrs Lia Lellou Tserioti, had
acquired the ownership of the plot of land no. 119 (registration no.
1204, sheet/plan XII/20.E.1, Block D, area: 725 square metres) in the
District of Kyrenia in northern Cyprus. Before 20 July 1974 the
applicants' family constructed on this plot, which was located on the
beach of Akti Kimonos, a fully furnished three storey house which
they used as a secondary residence. This house consisted of 2
garages/playroom/beach facilities on the sea level, a living-dining
area with a fire-place, one bedroom, a shower, a kitchen and a large
covered veranda on the upper ground floor, four bedrooms with a
bathroom on the first floor. In February 1985, the applicants' mother
donated the property to her two daughters in equal shares.
- In
support of their claim to ownership, the applicants produced
affirmation certificates issued by the Government of Cyprus.
- Since
1974 the applicants had been prevented from having access to and
using their house. In particular, they had been prevented from living
in it with their family. The applicants alleged that the house had
been subsequently occupied by officers and/or other members of the
Turkish military forces.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility ratione
loci and ratione temporis, non-exhaustion of domestic
remedies and lack of victim status. The Court observes that these
objections were identical to those raised in the case of Alexandrou
v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009),
and should be dismissed for the same reasons.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants complained that since July 1974, Turkey had prevented them
from exercising their right to the peaceful enjoyment of their
possessions.
They
invoked Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government submitted that the properties claimed by the applicants
were situated outside the jurisdiction of Turkey and that the latter
had no knowledge about it. In any event, the applicants had not
produced any title deed supporting their claim to ownership.
According to the Department of Lands and Surveys of the “Turkish
Republic of Northern Cyprus” (the “TRNC”) –
which was in possession and control of the relevant land registers –
the property described in the present application had not been
registered in the names of the applicants. No such registration had
been effected before 1974, or any time thereafter. The applicants'
properties had not been occupied or used by officers and/or members
of the Turkish army.
- Finally,
the alleged interference with the applicants' property rights could
not be seen in isolation from the general political situation in the
island of Cyprus and had in any event been justified in the general
interest.
2. The applicants
- The
applicants relied on the principles laid down by the Court in the
Loizidou v. Turkey judgment ((merits), 18 December
1996, Reports of Judgments and Decisions 1996-VI).
B. The third-party intervener
- The
Government of Cyprus observed that its department of Lands and
Surveys had provided with certificates of affirmation the persons who
did not have title deeds in their possession but whose title had been
entered in District Land Offices registers in the Turkish-occupied
area. These certificates were prima facie evidence of their
right of property. The “TRNC” authorities were in
possession of all the records of the Department of Lands and Surveys
relating to the title to properties. It was therefore the duty of the
respondent Government to produce them.
- The
Government of Cyprus further noted that the present case was similar
to that of Loizidou v. Turkey ((merits), cited above), where
the Court had found that the loss of control of property by displaced
persons arose as a consequence of the occupation of the northern part
of Cyprus by Turkish troops and the establishment of the “TRNC”,
and that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
C. The Court's assessment
- The
Court first notes that the documents submitted by the applicants (see
paragraph 9 above) provide prima facie evidence that they had
a title of ownership over the property at issue. As the respondent
Government failed to produce convincing evidence in rebuttal, the
Court considers that the applicants had a “possession”
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 applicants
were denied access to and control, use and enjoyment of their
properties as well as any compensation for the interference with
their property rights.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicants submitted that in
1974 they had had their home in Kyrenia. As they had been unable to
return there, they were the victims of a violation of Article 8
of the Convention.
This provision reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government disputed this claim, observing that the applicants claimed
ownership only to a “holiday house”, which could not
constitute a “home”. In any event, the applicants'
inability to return to northern Cyprus had been an inevitable
consequence of the political state of affairs on the island and of
the existence of the UN buffer zone. The alleged interference with
their rights under Article 8 had therefore been necessary in the
interests of national security, public safety, for the prevention of
disorder and for the protection of the rights and freedoms of others.
- The
Government of Cyprus submitted that where the applicant's properties
constituted the person's home, there was a violation of Article 8
of the Convention.
- The
applicants alleged that one of them was planning to permanently
reside in the house at issue. At the time of the Turkish invasion,
both applicants used to spend school holidays and weekends there.
- The
Court notes that the Government failed to produce any evidence
capable of casting doubt upon the applicants' statement that, at the
time of the Turkish invasion, they used to spend holidays and
weekends in their family house located on the beach of Akti Kimonos.
- The
Court recalls that in the case of Demandes v. Turkey ((merits),
cited above, §§ 31-34), it has considered that a house of
which the applicant and his family were making regular use for
substantial periods of time over the year, and that served inter
alia as a holiday home, qualified as “home” within
the meaning of Article 8 of the Convention. The Court does not see
any reason to depart from these conclusions in the present case,
which differs from the Loizidou case ((merits), cited above)
since, unlike Mrs Loizidou, the applicants actually had a home
in the district of Kyrenia.
- The
Court notes that since 1974 the applicants have been unable to gain
access to and to use that home. In this connection the Court recalls
that, in its judgment in the case of Cyprus v. Turkey (cited
above, §§ 172-175), it concluded that the complete
denial of the right of Greek Cypriot displaced persons to
respect for their homes in northern Cyprus since 1974 constituted a
continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General ...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
- The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
- Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention on account of the complete denial of the
applicants' right to respect for their home.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION
- The
applicants complained of a violation of the general obligation to
respect human rights enshrined in Article 1 of the Convention.
This provision reads as follows:
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
- The
Court has found the respondent Government to be in breach of Article
1 of Protocol No. 1 and of Article 8 of the Convention and does not
consider it necessary to examine the complaint under Article 1,
which is a framework provision that cannot be breached on its own
(see Ireland v. the United Kingdom, § 238, 18
January 1978, Series A no. 25, and Eugenia Michaelidou Ltd and
Michael Tymvios v. Turkey, no. 16163/90, § 42, 31 July
2003).
V. 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. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicants
- In
their just satisfaction claims of September 1999, the applicants
requested 245,299 Cypriot pounds (CYP –
approximately 419,117 euros (EUR)) for pecuniary damage. They relied
on an expert's report assessing the value of their losses which
included the loss of annual rent collected or expected to be
collected from renting out their house in the District of Kyrenia,
plus interest from the date on which such rents were due until the
day of payment. The rent claimed was for the period dating back to
January 1987, when the respondent Government accepted the right
of individual petition, until January 2000. The applicants did not
claim compensation for any purported expropriation since they were
still the legal owners of the properties. The evaluation report
contained a description of the town of Kyrenia, of its development
perspectives and of the applicants' property.
- The
starting point of the valuation report was the rental value of the
applicants' property in 1974, calculated as a percentage (5%) of its
estimated value (CYP 75,000 – approximately EUR 128,145; the
total annual rent in 1974 was thus CYP 3,750 – approximately
EUR 6,407). The expert took into account the fact that the
applicants' property was somehow unique and that there had been no
sales of really comparable plots. The expert considered it reasonable
to fix the market value of the land at CYP 60 per square metre, while
the cost of construction of the building was approximately CYP 55 per
square metre for the upper ground and first floors and CYP 30 per
square metre for the lower ground floor. He further took into account
the trends of rent increase on the basis of: (a) the nature of the
area of property; (b) the trends for the period 1970-1974; (c) the
trends in the unoccupied areas of Cyprus from 1974 onwards. This last
trend was based on the Consumer Price Index for rents and houses
issued by the Department of Statistics and Research of the Government
of Cyprus, increased by a percentage of 25%. Moreover, compound
interests for delayed payment was applied at a rate of 8% per annum.
- On
23 January 2008, following a request from the Court for an update on
the developments of the case, the applicants submitted updated claims
for just satisfaction, which were meant to cover the loss of the use
of property from 1 January 1987 to 31 December 2007. They produced a
revised valuation report, which, on the basis of the criteria adopted
in the previous report, concluded that the sum due was CYP 314,591
plus CYP 318,077 for interest. The total sum claimed under this
head was thus CYP 632,668 (approximately EUR 1,080,976). Taking
into account the fact that their home was freely occupied by the
Turkish army, the applicants further claimed the additional sum of
EUR 3,500 per month, to be paid on a yearly basis and to be adjusted
in accordance with inflation for a period of 18 years or until
the Turkish army vacated the premises.
- In
their just satisfaction claims of September 1999, the applicants
further claimed CYP 120,000 (approximately EUR 205,032) each in
respect of non-pecuniary damage. In particular, each of the
applicants claimed CYP 30,000 for the anguish and frustration
she suffered on account of the continuing violation of her property
rights. They stated that this sum had been calculated on the basis of
the sum awarded by the Court in the Loizidou case ((just
satisfaction), Reports 1998-IV, 28 July 1998), taking
into account, however, that the period of time for which the damage
was claimed in the instant case was longer. The applicants also
claimed CYP 90,000 each for the distress and suffering they had
been subjected to due to the denial of their right to respect for
their home.
- Finally,
in their updated claims for just satisfaction of 23 January 2008, the
applicants requested the additional sum of EUR 50,000 each for
non-pecuniary damage.
(b) The Government
- The
Government filed comments on the applicants' 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.
Moreover, owing to the lapse of time since the lodging of the
applications, new situations might have arisen: the properties could
have been transferred, donated or inherited within the legal system
of southern Cyprus. These facts would not have been known to the
respondent Government and could be certified only by the
Greek-Cypriot authorities, who, since 1974, had reconstructed the
registers and records of all properties in northern Cyprus.
Applicants should be required to provide search certificates issued
by the Department of Lands and Surveys of the Republic of Cyprus. 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 some applicants had shared properties
and that it was not proved that their co-owners had agreed to the
partition of the possessions. Nor, when claiming damages based on the
assumption that the properties had been rented after 1974, had the
applicants shown that the rights of the said co-owners under domestic
law had been respected.
- The
Government further submitted that as an annual increase of the value
of the properties had been applied, it would be unfair to add
compound interest for delayed payment, and that Turkey had recognised
the jurisdiction of the Court on 21 January 1990, and not in January
1987. In any event, the alleged 1974 market value of the properties
was exorbitant, highly excessive and speculative; it was not based on
any real data with which to make a comparison and made insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international. The
report submitted by the applicants 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 applicants 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 property
described in paragraph 8 above. This property could also 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 applicants applied to the Immovable Property
Commission, the latter would have offered CYP 51,710.23
(approximately EUR 88,352) to compensate the loss of use and
CYP 55,078.40 (approximately EUR 94,106) for the value of the
property. According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of the properties described
in paragraph 8 above was CYP 9,000 (approximately EUR 15,377). Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicants exchange of their property
with Turkish-Cypriot properties located in the south of the island.
- Finally,
the Government did not comment on the applicants' submissions under
the head of non-pecuniary damage.
2. The third party intervener
- The
Government of Cyprus fully supported the applicants' 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 applicants' title of ownership over the properties at
issue (see paragraph 41 above) is, in substance, an objection of
incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. Such an objection should have been
raised before the application was declared admissible or, at the
latest, in the context of the parties' observations on the merits. In
any event, the Court cannot but confirm its finding that the
applicants had a “possession” over the plot of land and
the house located on the beach of Akti Kimonos within the meaning of
Article 1 of Protocol No. 1 (see paragraph 19 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicants of the 1974 market value of their properties is
reasonable. The question must accordingly be reserved and the
subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicants
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
their just satisfaction claims of September 1999 relying on bills
from their representative, the applicants sought CYP 2,002.32
(approximately EUR 3,421) for the costs and expenses incurred before
the Court. This sum included CYP 800 (approximately EUR 1,366) for
the cost of the expert report assessing the value of their
properties. In their written observations of 15 January 2004, the
applicants claimed additional legal fees for CYP 2,645 (approximately
EUR 4,519). Finally, in their updated claims for just satisfaction of
23 January 2008, they submitted additional bills of costs for
the new valuation report and for legal fees amounting to EUR 392.15
and EUR 2,955.5 respectively. The total sum sought for
costs and expenses was thus approximately EUR 11,287.65.
- 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
applicants.
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 by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 1 of 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 applicants 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 22 September 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 violations
of Article 1 of Protocol No. 1 and Article 8 of the Convention, for
the same reasons as those mentioned in my dissenting opinion in the
case of Gavriel v. Turkey (no. 41355/98, 20
January 2009).
