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FOURTH
SECTION
CASE OF
GAVRIEL v. TURKEY
(Application
no. 41355/98)
JUDGMENT
(just
satisfaction)
STRASBOURG
22
June 2010
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 Gavriel v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Işıl
Karakaş, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having deliberated in private on 1 June
2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41355/98) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mr Savvas Gavriel (“the
applicant”), on 27 March 1998.
- In
a judgment delivered on 20 January 2009 (“the principal
judgment”), the Court upheld the Turkish Government's objection
of incompatibility ratione materiae with the provisions of the
Convention as far as four of the properties claimed by the applicant
were concerned and dismissed the remainder of the Government's
preliminary objections. It found continuing violations of Article 8
of the Convention by reason of the complete denial of the right of
the applicant to respect for his home and 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 two of his
properties as well as any compensation for the interference with his
property rights. Furthermore, it found that it was not necessary to
examine the applicant's complaint under Article 14 of the Convention
(Gavriel v. Turkey, no. 41355/98, §§ 29,
30, 39, 49 and 54 and points 1-5 of the operative provisions,
20 January 2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of 337,281 Cypriot pounds (CYP –
approximately 576,278 euros (EUR)) for the deprivation of his
properties concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
2000. A valuation report, setting out the basis of the applicant's
loss, was appended to his observations. Furthermore, the applicant
claimed CYP 60,000 (approximately EUR 102,516) in respect of
non-pecuniary damage and approximately EUR 6,834 for the costs
and expenses incurred before the Court.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it in whole and invited
the Government and the applicant to submit, within three months,
their written observations on that issue and, in particular, to
notify the Court of any agreement they might reach (ibid., §§
68 and 71, and point 6 of the operative provisions).
- On
13 July 2009 the Court invited the applicant and the Government to
submit any materials which they considered relevant to assessing the
1974 market value of the properties concerned by the principal
judgment.
- The
applicant and the Government each filed comments on this matter.
- On
4 September 2009 the applicant was invited to submit written
evidence that the properties at stake were still registered in his
name or to indicate and substantiate any transfer of ownership which
might have taken place.
- On
29 September 2009 the applicant produced an “affirmation of
ownership of Turkish-occupied immovable property” issued by the
Department of Lands and Surveys of the Republic of Cyprus. According
to this certificate, on 16 September 2009 the applicant was the
registered owner of the property described in paragraph 16 (b)
below. The applicant furthermore submitted a certificate of
registration of the immovable property described in paragraph 16 (a)
below issued on 15 January 1968. This document specified that
the “assessed value” of this plot of land was, at the
relevant time, CYP 12.81 (approximately EUR 22).
THE LAW
I. PRELIMINARY ISSUE
- In
a letter of 22 April 2010 the Government requested the Court to
decide that it was not necessary to continue the examination of the
applicant's just satisfaction claims. They invoked the principles
affirmed by the Grand Chamber in Demopoulos and Others v. Turkey
([GC] (Dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03,
10200/04, 14163/04, 19993/04, 21819/04, 1 March 2010) and argued
that the applicant should address his claims to the Immovable
Property Commission (the “IPC”) instituted by the “TRNC”
Law 67/2005.
- The
Court first observes that the Government's submissions were
unsolicited; they were received by the Registry long after the
expiration of the time-limit for filing comments on just satisfaction
and almost two months after the delivery of the Grand Chamber's
decision in Demopoulos. It could therefore be held that the
Government are estopped from raising the matter at this stage of the
proceedings.
- In
any event, the Court cannot but reiterate its case-law according to
which objections based on non-exhaustion of domestic remedies raised
after an application has been declared admissible cannot be taken
into account at the merits stage (see Demades v. Turkey (merits),
no. 16219/90, § 20, 31 July 2003, and Alexandrou
v. Turkey (merits), no. 16162/90, § 21, 20 January
2009) or at a later stage. This approach has not been modified by the
Grand Chamber, as the cases of Demopoulos and Others had not
been declared admissible when Law 67/2005 entered into force and when
Turkey objected that domestic remedies had not been exhausted.
- Furthermore,
the Court considers that its previous finding in the present case
that the applicant was not required to exhaust the remedy introduced
by Law 67/2005 constitutes res judicata. It recalls that after
the compensation mechanism before the IPC was introduced, the
Government raised an objection based on non-exhaustion of domestic
remedies. This objection was rejected in the principal judgment (see
paragraph 28 of the principal judgment and point 2 of its operative
provisions). The Government also unsuccessfully requested the
referral of the case to the Grand Chamber.
- It
follows that the Government's request to stay the examination of the
applicant's claims for just satisfaction should be rejected. The
Court will therefore continue to examine the case under Article 41 of
the Convention.
II. 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 applicant
- In
his just satisfaction claims of April 2000, the applicant requested
CYP 337,281 (approximately EUR 576,278) for pecuniary damage. He
relied on an expert's report assessing the value of his losses which
included the loss of annual rents collected or expected to be
collected from renting out his properties, plus interest from the
date on which such rents were due until the day of payment. The rent
claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until 2000. The applicant did not claim compensation for any
purported expropriation since he was still the legal owner of the
properties.
- The
properties in respect of which in the principal judgment the Court
found a violation of Article 1 of Protocol No. 1 can be described as
follows:
(a) Nicosia/Kapouti,
plot no. 576, sheet/plan 19/16, field, area: 5,017 square metres
(m²);
(b) Kyrenia/Livera,
plot no. 39/1, sheet/plan 5/62W1, field, area: 112,149 m².
- The
starting point for the valuation report was the annual rental value
of the applicant's properties in 1974, calculated on the basis of a
percentage (from 4 to 6%) of the market value of the properties or
assessed by comparing the rental value of similar land at the
relevant time. This sum was subsequently adjusted upwards according
to an average annual
rental increase of 7% for agricultural land. Compound interest for
delayed payment was applied at a rate of 8%, the total sum due for
interest being CYP 117,105 (approximately EUR 200,085).
- According
to the expert, the 1974 rental value of the applicant's fields listed
in paragraph 16 (a) and (b) above were the following (see paragraphs
9, 29 and 39 of the principal judgment):
-
property listed under (a): rental value CYP 25 (approximately
EUR 42.7);
-
property listed under (b): rental value CYP 336 (approximately
EUR 574).
- The
applicant's expert also established a 1974 rental value of CYP 409
(approximately EUR 699), CYP 515 (approximately EUR 880), CYP 60
(approximately EUR 102.5) and CYP 60 (approximately EUR 102.5)
respectively for the other properties claimed by the applicant, in
respect of which the Court upheld the Government's preliminary
objection of incompatibility ratione materiae with the
provisions of the Convention.
- In
a letter of 28 January 2008 the applicant observed that a long lapse
of time had passed since he had presented his claims for just
satisfaction and that the claim for pecuniary losses needed to be
updated according to the increase of the market value of land in
Cyprus (between 10 and 15% per annum).
- On
6 October 2009 the applicant 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 and for
statutory interest for the properties described in paragraph 16 (a)
and (b) above was EUR 135,550. He moreover alleged that the eviction
from the house in Morphou, registered in his wife's name, had forced
him to rent another house and that this fact had entailed an
additional cost of EUR 95,449.
- The
applicant also produced a statement, dated 1 May 2009, by which the
president of the Community Council of Kapouti village declared that
in 1974 the plot of land described in paragraph 16 (a) above was a
citrus grove generating an income of CYP 1,000 (approximately
EUR 1,708). The expert appointed by the applicant declared that
his “valuation [was] based on comparable plots where available
in the occupied part of Cyprus and comparable areas in the unoccupied
parts of Cyprus” and that according to his experience the “1974
prices used [were] fair, reasonable and accurate ... beyond dispute”.
- The
applicant also submitted a statement made on 5 October 2009 by Mrs
Efi Savvides, a District Land Officer in Nicosia, which reads as
follows:
“I ... hereby certify that for the preparation of
the original valuation reports of the application ... [no.]
41335/1998, Gavriel v. Turkey ... the Department of Lands and Surveys
has collaborated with the private practice valuers ... by giving any
assistance required and providing all the necessary information, data
and plans to the said valuers ...
The valuation method and approach as well as the market
values and rents derived are considered fair and reasonable and are
consistent with the available comparable sales and existing
conditions, in the economy and the property market in Cyprus as at
July – August 1974.”
- In
his just satisfaction claims of April 2000, the applicant claimed CYP
40,000 (approximately EUR 68,344) in respect of non-pecuniary
damage. He stated that this sum had been calculated on the basis of
the sum awarded by the Court in the Loizidou case ((just
satisfaction), 28 July 1998, Reports of Judgments and Decisions
1998-IV), taking into account, however, that the period of time
for which the damage was claimed in the instant case was longer and
that there had also been a violation of Article 14 of the Convention.
He furthermore claimed CYP 20,000 (approximately EUR 34,172)
with respect to the moral damage suffered for the loss of his home.
- On
6 October 2009 the applicant increased his claim for non-pecuniary
damage up to EUR 70,000 for the violation of Article 1 of Protocol
No. 1 and up to EUR 80,000 for the violation of Article 8 of the
Convention.
(b) The Government
- The
Government filed comments on the applicant's claims for just
satisfaction on 22 September 2008 and 6 October 2009. They observed
that the applicant's properties were “fields” and not
“building plots” and that very little rent could be
obtained from fields in Cyprus. 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 further submitted that
Turkey had recognised the jurisdiction of the Court on 21 January
1990, and not in January 1987.
- In
their comments of 6 October 2009 the Government noted that in his
first valuation report (see paragraphs 15 and 17 above) the
applicant's expert had taken into account also a property in Morphou,
which did not belong to the applicant, but to his wife. Such a claim
was unacceptable and not in line with the practice of the Court. The
annual rent increase and the compound interest rate claimed by the
applicant were assumptive and highly excessive.
- As
indicated in a document annexed to the Government's observations of 6
October 2009, the Turkish-Cypriot authorities had offered the
applicant CYP 113,963.59 (approximately EUR 194,718). It was
also to be observed that “some of the properties” had not
been registered in the applicant's name in 1974 (one was registered
in the name of Savvas Michael Gavriel and another one in the name of
Stehios Stavrou Filippou); moreover, one of the properties in Morphou
could not be found in the Land Registries.
- The
Government further observed that in making its assessment as regarded
compensation for the loss of use, the IPC had collected data from the
Department of Lands and Surveys on the 1973-1974 purchase prices for
comparable properties. It had also examined the development of
interest rates of the Cyprus Central Bank. The loss of income was
then calculated by assuming that the obtainable rent would have been
5% of the value of the properties; this last value had been modified
every year on the basis of the land market value index. Cyprus
Central Bank interest rates had been applied on the sums due since
1974.
- It
could therefore be said that the IPC had used the same criteria as
the Greek-Cypriots applicants. However, being in possession of the
land registers in which comparable sales had been recorded, it was
better placed to assess the 1974 market values of the properties.
Applicants had, in general, tended to exaggerate and inflate these
values. Their calculations were highly presumptive; for instance, the
percentage used for assessing the loss of income had frequently been
the same for buildings, fields, orchards and plots of land,
irrespective of their location, of the existence of electricity or
water supplies and of an access to a minor or major road. On the
contrary, the Turkish-Cypriot authorities had taken all these factors
into consideration; they had applied a higher percentage for
buildings in built-up areas than for vacant fields.
- The
Government also insisted that, as it could not be excluded that the
properties at issue had been transferred within the legal system of
southern Cyprus, applicants should be required to provide search
certificates issued by the Greek-Cypriot Department of Lands and
Surveys. Failure to substantiate title to the properties at the
material time and at the time of the Court's judgment should be
considered as a failure to cooperate with the Court. No just
satisfaction should be awarded in respect to unsubstantiated or
dubious claims.
- After
the delivery of the Court's principal judgment, the Turkish-Cypriot
authorities had invited the applicant to apply to the IPC in order to
reach an agreement on the matter of compensation. The applicant had
not replied to this invitation. This attitude was mainly due to
political reasons and to the pressures exerted by the Greek-Cypriot
authorities in order to discourage their citizens from applying to
the IPC. Misleading information had been given about its powers and
the Greek-Cypriots who had applied to it had been questioned by the
Office of the Attorney General. In 2006 the Greek-Cypriot media had
even revealed a “shame list” and published the names of
applicants to the IPC.
- The
Government finally noted that the applicant's claims under the head
of non-pecuniary damage were also based on the assumption of the
existence of a violation of Article 14 of the Convention; however,
the Court did not make any findings in this respect. In any event,
the claims at issue were excessive and incompatible with the practice
of the Court. The applicant should not be allowed to duplicate the
heads of non-pecuniary damages.
2. The Court's assessment
- The
Court recalls that in its principal judgment it has concluded that
there had been a continuing violation of the applicant's rights
guaranteed by Article 8 of the Convention and Article 1 of
Protocol No. 1 by virtue of the complete denial of the applicant's
rights with respect to his home and the peaceful enjoyment of his
properties listed in paragraph 16 (a) and (b) above (see paragraphs
49 and 39 of the principal judgment). Furthermore, its finding of a
violation of Article 1 of Protocol No. 1 was based on the fact that,
as a consequence of being continuously denied access to his land, the
applicant had effectively lost all access and control as well as all
possibilities to use and enjoy his properties (see paragraph 37 of
the principal judgment). He is therefore entitled to a measure of
compensation in respect of losses directly related to this violation
of his rights as from the date of the deposit of Turkey's declaration
recognising the right of individual petition under former Article 25
of the Convention, namely 22 January 1987, until the present
time (see Cankoçak v. Turkey, nos. 25182/94
and 26956/95, § 26, 20 February 2001, and Demades
v. Turkey (just satisfaction), no. 16219/90, § 21, 22
April 2008).
- In
connection with this, the Court notes that the affirmation of
ownership of Turkish-occupied immovable property produced by the
applicant (see paragraph 8 above) shows that on 16 September 2009 he
was still the owner of the property described in paragraph 16 (b)
above. The applicant failed, however, to produce similar evidence in
respect of the property described in paragraph 16 (a) above. The
certificate of registration of this plot of land only proves that he
owned it in 1968. The Court will take due account of the lack of
evidence of continuous ownership when assessing the amount of
pecuniary damage.
- In
the opinion of the Court, the valuations furnished by the applicant
involve a significant degree of speculation and make insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international (see
Loizidou v. Turkey (just satisfaction), cited above, §
31). Accordingly, in assessing the pecuniary damage sustained by the
applicant, the Court has, as far as appropriate, considered the
estimates provided by him (see Xenides-Arestis v. Turkey (just
satisfaction), no. 46347/99, § 41, 7 December
2006). In general it considers as reasonable the approach to
assessing the loss suffered by the applicant with reference to the
annual ground rent, calculated as a percentage of the market value of
the properties, that could have been earned during the relevant
period (Loizidou (just satisfaction), cited above, § 33,
and Demades (just satisfaction), cited above, § 23).
Furthermore, the Court has taken into account the uncertainties,
inherent in any attempt to quantify the real losses incurred by the
applicant (see Loizidou (preliminary objections), 23 March
1995, Series A no. 310, § 102, and (merits),
18 December 1996, § 32, Reports 1996-VI).
- The
Court notes that notwithstanding its request to submit material
relevant to assessing the 1974 market value of the applicant's
fields, the parties have produced few elements in this respect. The
Government have relied on the accuracy of the IPC's calculations (see
paragraphs 29-30 above), while the applicant has submitted a
statement signed by a District Land Officer indicating that his
valuation reports were based on a fair and reasonable assessment of
the properties' values (see paragraph 23 above).
- The
Court further observes that the applicant submitted an additional
claim in the form of annual compound interest in respect of the
losses on account of the delay in the payment of the sums due. While
the Court considers that a certain amount of compensation in the form
of statutory interest should be awarded to the applicant, it finds
that the rates applied by him are on the high side (see, mutatis
mutandis, Demades (just satisfaction), cited above, §
24). Moreover, in his first report the applicant's expert has
calculated also the damages provoked by the loss of use of the
properties in respect of which the Court has upheld the Government's
objection of incompatibility ratione materiae (see
paragraph 19 above). The Court is of the opinion that no award
should be made in respect of these properties, including the house in
Morphou, which belonged to the applicant's wife (see paragraph 21
above).
- Finally,
the Court considers that an award should be made in respect of the
anguish and feelings of helplessness and frustration which the
applicant must have experienced over the years in not being able to
use his properties as he saw fit and enjoy his home (see Demades
(just satisfaction), cited above, § 29).
- Having
regard to the above considerations, the Court is of the opinion that
the sum claimed by the applicant in the revised valuation report of 6
October 2009 in respect of the loss of use of the properties
described in paragraph 16 (a) and (b) above (EUR 135,550 –
see paragraph 21 above) constitutes a fair basis for compensating the
pecuniary and non-pecuniary damage sustained by Mr Michael and
decides to award it.
B. Costs and expenses
- In
his just satisfaction claims of April 2000, the applicant sought CYP
4,000 (approximately EUR 6,834) for the costs and expenses incurred
before the Court. This sum included the costs of the expert report
assessing the value of his properties.
- On
6 October 2009 the applicant increased his claim for costs and
expenses up to EUR 19,796. He alleged that the new valuation report
had a cost of EUR 402.5 and that his legal expenses for the period
April 2000/October 2009 had amounted to EUR 12,460.
- The
Government did not comment on this point.
-
According to the Court's case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see,
for example, Iatridis
v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000-XI).
- The
Court notes that the case involved perusing a certain amount
of factual and documentary evidence and required a fair degree of
research and preparation. In particular, the
costs associated with producing valuation reports in view of the
continuing nature of the violations at stake were essential to enable
the Court to reach its decision regarding the issue of just
satisfaction (see Demades (just satisfaction), cited
above, § 34).
- Although
the Court does not doubt that the fees claimed were actually
incurred, it considers the amount claimed for the costs and expenses
relating to the proceedings before it excessive and decides to award
a total sum of EUR 8,000.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's request to
stay the examination of the applicant's claims for just satisfaction;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
135,550 (one hundred and thirty-five thousand five hundred and fifty
euros), plus any tax that may be chargeable, in respect of pecuniary
and non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
