JOANNOU v. TURKEY - 53240/14 (Judgment : Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria (Art. 35-1) Exhaustion of domestic reme...) [2017] ECHR 1133 (12 December 2017)

In the case of Joannou v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Robert Spano, President,
          Julia Laffranque,
          Ledi Bianku,
          Işıl Karakaş,
          Paul Lemmens,
          Valeriu Griţco,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 14 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 53240/14) 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 British and Cypriot national, Ms Adriani Joannou (“the applicant”), on 28 October 2014.

2. The applicant, who had been granted legal aid, was represented by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged, in particular, a lack of effectiveness of the proceedings she had instituted before the Immovable Property Commission (“IPC) seeking compensation in respect of real property located in the “Turkish Republic of Northern Cyprus” (the “TRNC”). She relied on Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1.

4. On 19 November 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The British Government and the Cypriot Government were informed of the proceedings. The British Government did not avail themselves of the right to intervene in the proceedings under Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court. In a letter of 28 January 2016 the Cypriot Government indicated that they wished to exercise their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 (b). However, at a later stage of the proceedings, in a letter of 21 October 2016, the Cypriot Government informed the Court that they had decided not to submit any written comments in the procedure.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1953 and lives in Enfield (United Kingdom).

A. Background to the case

7. The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus in July and August 1974. The general context of the property issues arising in this connection is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001-IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010).

8. In 1997 the applicant was gifted five plots of land, or shares in them, by her aunt, who died in 1998. In 2008 she was also gifted an additional share of one of the plots of land by her mother. According to the certificates of ownership provided by the Department of Lands and Surveys of the Republic of Cyprus, the applicant is the sole owner of four plots of land and owns a 9/16 share of the fifth plot.

9. The land lies in the village Koma Tou Yialou (Kumyali) in the “TRNC”. The total area of the land is some 18 dönüm.[1]

10. In 2007 the applicant instructed a law firm in Nicosia, which duly obtained a valuation report on the land from a Turkish Cypriot chartered surveyor. The valuation report of 3 December 2007 assessed each of the five plots of land and provided valuations for them, which ranged from 500 pounds sterling (GBP) per dönüm to GBP 10,000 per dönüm.

11. In October 2011 the applicant obtained a further valuation report by a chartered surveyor from the Republic of Cyprus. This report valued the five plots of land, including the economic loss and interest (all calculated for the period between 1974 and 2011), at 2,690,962 euros (EUR) in total.

12. In February 2017 the applicant obtained a new valuation report from the Land Registration Office of the Republic of Cyprus which assessed the value of the property in question, including economic loss and interest accrued since 1997 (when the applicant became owner of the property) to December 2016, at EUR 2,088,366 in total.

B. The proceedings before the IPC

13. In May 2008 the applicant, through her Turkish Cypriot representatives, filed a claim with the IPC under Law no. 67/2005 (see paragraphs 41-43 below) ‒ supported by an affidavit ‒ claiming restitution of her property and/or compensation at the property’s current market value and damages for loss of use of the land in question. The total compensation sought was GBP 100,000 per dönüm (GBP 1,800,000 or approximately EUR 2,285,000).

14. In her affidavit the applicant attested that the property in question had been transferred to her after 1974 by her aunt, who had owned it since before 1974. The affidavit also attested that there were no mortgages, liabilities or restrictions on the property in question, that the applicant lived in South Cyprus in a house owned by a Turkish Cypriot, and that she was paying rent to the Republic of Cyprus. The file also contained the applicant’s identity documents (British passport and Cypriot identity card), certificates from the Republic of Cyprus Land Registry and Surveys Department concerning the ownership and legal status of the applicant’s plots of land (indicating no mortgages, liabilities or other restrictions), and a document issued by the relevant Cypriot authority showing that the applicant lived in a house owned by a Turkish Cypriot and had been billed 270 Cypriot pounds (CYP) by way of rent for the period 1 April 2003 to 30 June 2004.

15. The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no. 67/2005 and the relevant IPC Rules (see paragraph 43 below).

16. On 5 May 2010, the Attorney General’s Office submitted an opinion to the IPC in reply to the applicant’s claim. It relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department, who explained that their records showed that one of the registered owners of the property in question was Chrystollou Nicola Stavrinou (the applicant’s aunt), that Maria Nicola Stavrinou (the applicant’s mother) was the owner of part of one of the plots of land, and that the applicant had failed to demonstrate that she was the legal heir of the two registered owners. He also considered that the applicant’s compensation claim was excessive and unfounded.

17. A directions hearing before the IPC took place on 25 May 2010. The applicant’s representative stated that they had received the Attorney General’s opinion only on the day of the hearing and thus asked for an adjournment in order to prepare their case. The Attorney General’s representative did not object and the hearing was adjourned until 1 June 2010.

18. At a directions hearing on 1 June 2010 the applicant’s representative undertook to obtain a valuation report and a document showing that the plots of land had been transferred to the applicant by way of donation. The Attorney General’s representative requested that documents showing that the applicant was the legal heir of Chriystolleuo Nicola Stavrou [sic.] should be provided, as well as proof of the amount of rent she was paying for the Turkish Cypriot house where she lived in the South, or alternatively the lease agreement by which the house had been allocated to her. The Attorney General’s representative also undertook to submit a search document from the “TRNC” Land Registry and Surveys Department, and indicated that he reserved his right to submit and request further documents. The hearing was adjourned so that the parties could obtain the relevant documents.

19. On 3 June 2010 the Attorney General submitted the search document of the “TRNC” Land Registry and Surveys Department relating to the plots included in the applicant’s claim.

20. On 6 June 2012, through her representative, the applicant asked permission to amend her initial claim. She submitted that she had in the meantime become the sole owner of the plot of which she had previously owned a 5/6 share and that in October 2011 she had obtained a valuation report indicating that the value of her properties was EUR 2,690,962 (see paragraph 8 above).

21. At a preliminary hearing on 18 June 2012, after the Attorney General’s representative stated that he had no objections with regard to the amendment of the applicant’s claim; the President of the IPC accepted the amendment and instructed the applicant to submit her amended claim and the Attorney General’s Office to submit an opinion in that regard.

22. On 6 July 2012 the applicant complied with the order and amended her claim, seeking compensation in accordance with the new findings and developments concerning her property title.

23. On 20 November 2012 the applicant submitted the documents requested by the Attorney General’s representative on 1 June 2010 (see paragraph 18 above). In particular, the applicant submitted certificates issued by the head of the local community (mukhtar) explaining that there were inconsistencies in the spelling of the applicant’s aunt’s name in different documents. The mukhtar explained that the latter had held Cypriot identity document no. 327090 and had been variously known as: Christallou Nikola Stavrinou, Chriystallou Nicola Stavrinon, Christallou Nicola Stavrinou, Christalla Nikola and Chrystallou Nicola, but these were one and the same person. The mukhtar further certified that she had never married and that before her death she had gifted her immovable property to her sister’s daughter, the applicant (Andriani Ioannou, holder of a Cypriot identity card). In support of the mukhtar’s certificates, the applicant submitted her aunt’s identity documents (including a Cypriot identity document). The applicant also submitted documents showing the transfer of title from her aunt to her in respect of the plots of land in question. She also submitted documents showing that she had been allocated a Turkish Cypriot house in the South and had paid CYP 342 by way of rent for the period 1 June 2000 to 31 December 2001 and CYP 270 for the period 1 April 2003 to 30 June 2004.

24. A preliminary hearing before the IPC scheduled for 10 January 2013 was adjourned due to the absence of the Attorney General’s representative, who could not attend the hearing for family reasons.

25. At a preliminary hearing on 25 January 2013 the “TRNC” authorities were represented by the Attorney General’s representative and the under-secretary of the Housing Affairs Department. They asked the applicant to submit the birth certificates of her aunt and her mother and a title deed for the property which she now owned in its entirety. The hearing was adjourned to enable the applicant to obtain the documents in question.

26. On 19 February 2013 the applicant submitted the requested documents, which also included documents confirming that her aunt had never been married.

27. At a preliminary hearing on 25 April 2013 the “TRNC” representatives asked the applicant to submit certificates from the mukhtar showing that the names Andriani Joannou, Andriani Ioannou and Andriani Georgiou Antoniou all referred to the applicant, and further certificates showing that her aunt had been variously known as Chrystollou Nicola Stavrinou, Chrystolleuo Nicola Stavriou, Chrystolleui Nicolou Stavriou, Nikola Hristallu (Nicola Hrystallou), Hristalla Nicola and Hrystallou Nicola (Nikola), and that her mother had been variously known as Maria Nicola Stavrinou, Maria Stavrinou, Maria Georgiou and Maria Georgios, and that their antecedent Nikolas Stavrinou (Nicolas Stavrinou), had also been known as Nicola Stavrinou and Nicola Stavrinu. The hearing was adjourned to permit the applicant to obtain the requested documents.

28. On 9 May 2013 the applicant submitted certificates from the mukhtar showing that the aforementioned different names referred to the same individuals, namely the applicant, her mother, her aunt and their antecedent, respectively. The mukhtar’s certificates also identified these individuals on the basis of their identity card numbers. A certificate dated 8 May 2013 indicated that the applicant’s mother was variously known as Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou and her aunt as Chrystolleui Nicolou Stavriou.

29. At a preliminary hearing on 24 October 2013, at which the applicant was also present, the “TRNC” representatives argued that the mukhtar’s certificates were incomplete and that the names Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou, for the applicant’s mother, and Chrystolleui Nicolou Stavriou, for the applicant’s aunt, should be added. The representative further argued that an official document should be submitted showing that the applicant’s aunt had not married and did not have any other heirs. He also requested a document showing that there were no liabilities attaching to the property in question. Upon production of these documents, the Attorney General’s representative would be prepared to settle the case by paying GBP 60,000 to the applicant.

30. In reply, the applicant’s representative stated that they would obtain the requested documents. However, he pointed out that they had already produced documents showing that the applicant’s aunt had never married and this was anyway apparent from the fact that she had never changed her last name. The applicant’s representative also pointed out that the applicant’s aunt had transferred the property in question to the applicant while she was still alive. He asked for an adjournment in order to consider the Attorney General’s settlement offer.

31. On 16 January 2014 the applicant’s representative asked that a hearing be held before the IPC.

32. A further examination of the case before the IPC took place on 1 March 2016. The President and members of the IPC questioned the applicant’s representative with regard to the instructions he had received from the applicant concerning the case. As the applicant was not present and could not be reached at that time to give clear instructions concerning the case, the hearing was adjourned.

33. On 9 March 2016 the applicant’s Turkish Cypriot representatives informed her representative in the Republic of Cyprus that the fact that an application had been lodged with the Court had caused them upset. They also stated that they would not represent the applicant in further proceedings.

34. A hearing before the IPC was held on 28 June 2016. The applicant’s Turkish Cypriot representative explained that she had informed the applicant of her wish to withdraw from the case. However, she was unable to provide an official document to that effect and the hearing was therefore adjourned in order for the representative to complete the formalities for withdrawal.

35. On 19 August 2016 the applicant took over the files from her Turkish Cypriot representatives.

36. At a hearing on 28 September 2016 the IPC accepted the applicant’s Turkish Cypriot representatives’ withdrawal from the case and decided that the applicant should be contacted directly during the future course of the proceedings. Another hearing was scheduled for 12 October 2016.

37. On 15 October 2016 the applicant informed the IPC that she had not received the summons to the hearing of 12 October 2016 until 13 October 2016.

38. A further meeting for the examination of the case, at which the applicant was personally present, was held on 2 March 2017. The “TRNC” representatives argued that the applicant should provide further documents showing the exact dates of birth of her mother and her aunt as well as the respective death certificates. Furthermore, they argued that the applicant could not be considered to be a legal heir of her aunt for the purpose of Law no. 67/2005 as she had obtained the property at issue from her aunt while the latter was still alive. The applicant contended that these arguments were being raised for the first time now and she therefore asked for a formal hearing to be opened in her case. The President of the IPC instructed the applicant that the opinions expressed by the “TRNC” representatives did not represent the official position of the IPC and that the matter would be decided after the examination of all the circumstances of the case. The proceedings before the IPC are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution of the “TRNC” of 7 May 1985

39. Article 159 § 1 (b) and (c), in so far as relevant, provide as follows:

“(b) All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and (c) ... shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.”

40. Article 159 § 4 reads as follows:

“In the event of any person coming forward and claiming legitimate rights in connection with the immovable properties included in sub-paragraphs (b) and (c) of § 1 above [concerning, inter alia, all immovable properties, buildings and installations which were found abandoned on 13 February 1975], the necessary procedure and conditions to be complied with by such persons for proving their rights and the basis on which compensation shall be paid to them, shall be regulated by law.”

2. Law for the compensation, exchange and restitution of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, as amended by Laws nos. 59/2006 and 85/2007 (“Law no. 67/2005”)

41. The relevant provisions of Law no. 67/2005 are set out in the case of Demopoulos and Others v. Turkey (cited above, §§ 35-37).

42. Section 22 of Law no. 67/2005 provides that Rules for the better implementation of the provisions of that Law may be prepared by the IPC, approved by the “TRNC” Council of Ministers and published in the Official Gazette.

43. In 2006 the IPC adopted its Rules (the English version available at http://www.tamk.gov.ct.tr) which, in the relevant part, provide:

Rule 3
Form of Application

“(8) The Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property shall within 30 working days file with the secretariat a defence or opinion prepared in accordance with Form 2 attached to these Rules and serve a certified copy thereof on the address of the applicant.

(9) The defence or opinion given by the Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property in accordance with the legislation in force in the TRNC shall consist of the summary of the facts in issue. If deemed necessary, the Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property shall attach to the defence or opinion an affidavit by persons who have knowledge on the matter.”

Rule 6
Friendly settlement agreement on the satisfaction of the applicant

“(1) The Ministry responsible for Housing Affairs shall execute the decision of the Commission relating to restitution, exchange, compensation in lieu of the immovable property, compensation for non-pecuniary damages due to loss of the right to respect for home and compensation for loss of use. In execution of such decision, the Ministry responsible for Housing Affairs shall prepare a draft friendly settlement agreement in accordance with Form 3 and serve it to the applicant who has demonstrated his legitimate rights together with an invitation letter.

(2) The invitation letter shall state that the applicant who has demonstrated his legitimate rights should either personally or through a representative come to sign the draft friendly settlement agreement within one month. Otherwise, the draft friendly settlement agreement will be deemed rejected and he shall have the right to apply to the High Administrative Court.

(3) Should the applicant who has demonstrated his legitimate rights either personally or through his representative accept the draft friendly settlement agreement, this draft shall be signed by the Minister responsible for Housing Affairs and by him or his representative.

(4) Should the friendly settlement agreement be rejected, or when it is deemed rejected according to sub-section (2) of this section, a disagreement document shall be served on the interested parties.

(5) In case a dispute is not resolved through a friendly settlement, the right of the interested parties to appeal to courts shall be preserved.”

Rule 7
The functioning and meetings of the Commission

“(1) Following the submission of the defence or opinion of the Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property in accordance with these Rules, the parties will be convened on a specified date for a meeting concerning the giving of directions regarding the application in the Chairman’s office or any other place he may determine which is convenient for the parties. The Chairman may, following the hearing of the views of the parties, give the necessary directions regarding further detail, the discovery or examination of further documents, the manner in which testimony will be heard, whether or not a site investigation shall be carried out, the persons who should be required to be present during the presentation and on other matters deemed appropriate.

The proceedings that would be attended by the foreign members shall be in English. In all other cases, it will be in Turkish. However, upon the request of the applicant, an interpreter shall be provided.

(2) The proceedings of the Commission shall be based on the documents. All material relating to the applications shall be translated into English for foreign members. Provided that if deemed appropriate the Commission may hear the views and arguments of the parties and take the oral or sworn testimony of the witnesses they may wish to call. The proceedings of the Commission shall be held at its own premises provided that if necessary the Commission may also use the existing courtrooms or chambers to be allocated to the Commission with the approval of the President of the Supreme Court.

The Commission, when it deems necessary, may delegate the task of on-site exploration of the immovable property and preparation of an exploration report by a group of three members.

(3) The Commission may at any stage of the proceedings on its own motion call any person to give evidence or produce any document for the purpose of reaching a fair decision. No such testimony will be given without prior notice to the parties. The parties’ rights to express their views on the matter of calling such witnesses shall be reserved. The proceedings of the Commission, other than those on the documents, shall be in public. However, the rights of the applicant to request confidential proceedings should be preserved and upon request all proceedings shall be in camera.

(4) The Commission shall take its decisions with the simple majority of those present during sittings with a quorum of the 2/3 of the total number of its members. For the purposes of this section, the Chairman and the Deputy Chairman are each to be counted as one member of the Commission. Those dissenting or in the minority may write their views and opinions separately. Such separate views and opinions shall be part of the decision. At the meetings the voting shall be in public. Those present at the meetings shall not be entitled to cast any abstention vote. In case of equality of votes, the matter voted upon shall be deemed to have been rejected. The decision of the Commission shall be signed by the Chairman and another member and shall be conveyed to the parties or served on their address for service after having been sealed by the seal of the Commission.

(5) The Commission shall, after hearing all the views and claims of the parties, announce its reasoned decision within three months. However, depending on its work load and the unique character of the application, the writing of the reasoned decision may be extended up to six months.”

B. Relevant practice

44. The relevant case-law of the “TRNC” Constitutional Court is summarised in the Demopoulos and Others case (cited above, §§ 38-39).

45. According to the English translation of the “TRNC” Supreme Court’s judgment in case no. 129/2015, in which it dealt with issues relating to the nature of the awards made by the IPC and their enforcement, the “TRNC” Supreme Court referred to section 14 of Law no. 67/2005, which provides that the decisions of the IPC have binding effect and are of an executory nature similar to judgments of the judiciary, and such decisions must be implemented without delay upon service thereof on the authorities concerned. The “TRNC” Supreme Court pointed out, however, that it was not entirely apparent from the relevant law how the awards should be executed. In this connection it referred to Rule 6 of the IPC Rules (see paragraph 43 above) and explained that, in order to make the awards executable, actions designed to implement execution of the IPC’s awards, as required under Rule 6, must be taken by the relevant Ministry. Accordingly, only an award finalised in this manner could be said to be legally executable in a manner similar to a judicial decision.

C. Cases before the IPC

46. According to the currently available statistical information (the IPC’s Monthly Bulletin no. 96, 13 November 2017; available at http://www.tamk.gov.ct.tr) a total of 6,369 applications have so far been lodged with the IPC. The IPC has finalised 1035 cases, of which twenty-five were concluded following a hearing of the case and a decision by the IPC and 1012 by means of friendly settlement. In the vast majority of finalised cases (845) compensation has been awarded, amounting in total to the sum of GBP 238,779.386, whereas in other cases other forms of redress have been ordered or the claims were rejected.

47. The applicant pointed to 144 cases pending before the IPC in which her representative, Mr A. Demetriades ‒ who was representing other applicants in those cases ‒ had complained before the IPC that the “TRNC” Attorney General had failed to submit initial observations in reply to the lodged applications within a reasonable period of time. The periods of time that had elapsed before the Attorney General’s submission of initial observations ranged from three months to five years.

III. RELEVANT INTERNATIONAL MATERIAL

A. United Nations

48. The United Nations’ activities aimed at resolving the property issues in northern Cyprus arising out of the Turkish military intervention have been summarised in Demopoulos and Others (cited above, §§ 7-16).

49. A number of further political initiatives have been taken at UN level, particularly within the framework of the mission of the Secretary General’s Special Adviser for Cyprus. The United Nations Security Council welcomed these initiatives in its Resolution 2263 (2016) of 28 January 2016 (S/RES/2263 (2016)) and called upon the parties to put further efforts into reaching convergence on the core issues in dispute.

B. Council of Europe

50. In the context of the execution of the Court’s judgment in the Inter-State case of Cyprus v. Turkey (cited above), the Committee of Ministers is currently examining the general measures of execution required with respect to various issues identified in that judgment, including those relating to the immovable property of displaced Greek Cypriots that is located in the “TRNC” .

51. With respect to these measures, the following findings were made at the Committee of Ministers meeting in March 2017:

“...

Following the judgment of 22/12/2005 in the Xenides-Arestis case, an ‘Immovable Property Commission’ was set up in the northern part of Cyprus under ‘Law No. 67/2005 on the compensation, exchange or restitution of immovable property’. In its inadmissibility decision in Demopoulos and others, delivered on 5 March 2010, the Grand Chamber found that Law No. 67/2005, which set up the Immovable Property Commission in the northern part of Cyprus, ‘provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots’ (§ 127 of that decision).

In the judgment Cyprus v. Turkey (just satisfaction), delivered on 12 May 2014, the Court found that Turkey had not yet complied with the conclusion of the main judgment according to which there had been a violation of the property rights of displaced persons as they had been 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 said that ‘the compliance’ with this conclusion ‘could not be consistent with any possible permission, participation, acquiescence or otherwise complicity in any unlawful sale or exploitation of Greek Cypriot homes and property in the northern part of Cyprus’.

The Court also said that ‘the Court’s decision in the case of Demopoulos and Others to the effect that cases presented by individuals concerning violation of property complaints were to be rejected for non-exhaustion of domestic remedies, cannot be considered, on its own, to dispose of the question of Turkey’s compliance with section III of the operative provisions of the principal judgment in the inter-State case’ (see § 63 of the judgment on just satisfaction of 12 May 2014).

b) Examination of the Committee of Ministers at its 1259th meeting (June 2016)

On 30 May 2016, the delegation of Cyprus also submitted a memorandum on the property rights of displaced persons (DH-DD(2016)688). The Turkish delegation submitted a memorandum on this issue on 3 June 2016 (DH-DD(2016)707).

In the Cypriot authorities’ view, in order to comply with the main judgment, Turkey had inter alia to introduce measures to put an end to all transfers of immovable property belonging to displaced Greek Cypriots and ban all construction activities on such properties without the consent of the owners. The Turkish authorities considered that Turkey had already taken the measures required for the execution of this part of the judgment with the setting-up of the Immovable Property Commission. They also referred to protective measures prohibiting the sale and improvement of property which had been returned to its owners by the Commission or which would be returned, in accordance with its decisions, after the solution of the Cypriot problem.

At its 1259th meeting (June 2016) (DH), the Committee decided to resume consideration of the issue of the homes and immovable property of displaced Greek Cypriots at its 1280th meeting (March 2017) (DH).”

52. On the basis of the above findings, the Committee of Ministers decided at its 1280^th meeting to resume consideration of the issue of displaced Greek Cypriots’ property rights at its meeting in December 2017.

53. An issue still outstanding before the Committee of Ministers is the execution of the just satisfaction awards in thirty-three cases (designated as the Xenides-Arestis group; see the document containing the list of cases https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000168072832d) in which the Court found violations of the Convention with regard to breaches of the property rights of displaced Greek Cypriots.

54. The following findings were noted following the Committee of Ministers meeting in September 2017 (footnote references omitted):

“a) Payment of the just satisfaction: In the Loizidou case the just satisfaction was paid in 2003. The cases of Alexandrou and Eugenia Michaelidou Developments and Michael Tymvios do not raise any issue in respect of the payment of just satisfaction, as the applicants concluded friendly settlements with the respondent State regarding Article 41 (see below under “individual measures concerning the applicants’ property”). The Turkish authorities paid the just satisfaction awarded in the Xenides-Arestis judgment of 22 December 2005 in respect of costs and expenses.

As regards the Xenides-Arestis judgment of 07 December 2006, the sums awarded for material and moral damages and for costs and expenses have been due since 2007. In the Demades case, the sums awarded for just satisfaction have been due since 2009 and, in the more recent cases, since 2010-2012. In the Xenides-Arestis case the Committee of Ministers adopted two interim resolutions, in 2008 and 2010, strongly urging Turkey to pay the just satisfaction awarded by the European Court in the judgment of 7 December 2006, together with the default interest due. In the majority of these cases, the applicants or their representatives have addressed the Committee of Ministers on several occasions to complain about the lack of payment of the just satisfaction awarded to them.

At the 1208th meeting (September 2014) (DH), the Committee adopted an interim resolution deeply deploring that, to date, despite the interim resolutions adopted in the cases of Xenides-Arestis and Varnava, the Turkish authorities, on the ground that this payment could not be dissociated from the measures of substance in these cases, had not complied with their obligation to pay the amounts awarded by the Court to the applicants in those cases, as well as in 32 other cases in the Xenides-Arestis group.

In its interim resolution, the Committee also recalled that the then Chairmen of the Committee of Ministers had stressed on behalf of the Committee, in two letters addressed to the Turkish Minister of Foreign Affairs, that the obligation to comply with the judgments of the Court was unconditional. The Committee declared that the continued refusal by Turkey to pay the just satisfaction awarded in the case of Varnava and in 33 cases of the Xenides-Arestis group was in flagrant conflict with its international obligations, both as a High Contracting Party to the Convention and as a member State of the Council of Europe. It exhorted Turkey to review its position and to pay without any further delay the just satisfaction awarded by the Court, as well as the default interest due.

At its 1214th meeting (December 2014) (DH), the Committee expressed its deepest concern in view of the lack of response from the Turkish authorities to the two letters sent by the Chairmanship of the Committee of Ministers to the Turkish Minister of Foreign Affairs, as well as to the interim resolution adopted in September 2014. The Committee exhorted once again the Turkish authorities to review their position and to pay without further delay the just satisfaction awarded by the Court

At its 1230th (June 2015), 1236th (September 2015), 1243rd (December 2015) and 1250th (March 2016) meetings (DH), the Committee deeply deplored the lack of payment of the just satisfaction and exhorted once again the Turkish authorities to pay without further delay the sums awarded by the Court to the applicants, as well as the default interest due. The Committee also invited the Secretary General to raise the issue of payment of the just satisfaction in these cases in his contacts with the Turkish authorities, calling on them to take the measures necessary to pay it.

At its 1236th meeting (September 2015) (DH), the Committee also encouraged the authorities of the member States to do the same.

On 28 April 2016, the Secretary General sent a letter to the Minister for Foreign Affairs of Turkey trusting that the Turkish authorities would take the necessary measures to ensure the prompt payment of the just satisfaction awarded in these cases (see DH-DD(2016)573).

At its latest examinations of this issue (1259th, 1265th, 1273rd, 1280th and 1288th meetings (June, September, December 2016 and March and June 2017) (DH), the Committee firmly insisted once again on Turkey’s unconditional obligation to pay the just satisfaction awarded by the European Court in these cases and deeply deplored the absence of progress in this respect, again exhorting Turkey to comply with this obligation without further delay. The Committee agreed to resume consideration of this issue at their 1294th meeting (September 2017) (DH).

...

b) Individual measures concerning the applicants’ properties: The Committee decided to close its examination of the individual measures in one of these cases (Eugenia Michaelidou Developments and Michael Tymvios, decision taken at the 1043rd meeting (December 2008) (DH). In the Alexandrou case, the Turkish authorities having complied with the friendly settlement according to which they had to pay the applicant and return the immovable property at stake, it was noted that no further individual measures were needed (see the public notes of the 1092nd meeting (September 2010) (DH).

The Secretariat’s assessment of the individual measures in the cases of Loizidou, Xenides-Arestis, Demades and Eugenia Michaelidou Developments Ltd and Michael Tymvios is presented in the information document CM/Inf/DH(2010)21 of 17 May 2010. This assessment is valid for the other cases of this group in which the judgments on the just satisfaction became final after 2010.

The Turskish authorities presented their position in this respect in their memorandum of 3 June 2016 (DH-DD(2016)707).”

55. On the basis of the above findings, the Committee of Ministers decided to resume consideration of the Xenides-Arestis group of cases at its further meetings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

56. The applicant complained that the procedure before the IPC by means of which she sought compensation for her property in the “TRNC” had been protracted and ineffective and thus in breach of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1.

57. The Court finds that an issue related to the applicant’s claim for compensation before the IPC may arise under all the provisions relied upon by the applicant. In the circumstances of the case, and noting that the central tenet of the applicant’s grievance concerns her inability to obtain compensation for her property claim, the Court considers that the complaint should be examined solely under Article 1 of Protocol No. 1 (see, for the approach, Kirilova and Others v. Bulgaria, nos. 42908/98 and 3 others, §§ 87-88 and 125-127, 9 June 2005; Naydenov v. Bulgaria, no. 17353/03, §§ 48 and 86-87, 26 November 2009, and Shesti Mai Engineering OOD and Others v. Bulgaria, no. 17854/04, § 64, 20 September 2011).

58. Article 1 of Protocol No. 1 provides 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.”

A. Admissibility

1. The parties’ arguments

(a) The Government

59. Relying on the Court’s findings in the case of Demopoulos and Others v. Turkey (cited above) concerning the effectiveness of the IPC remedy, the Government argued that the applicant had failed to properly exhaust the available domestic remedies since she had lodged her application with the Court before the relevant proceedings before the IPC had finished. In this connection, the Government pointed out that the applicant had failed to produce all the relevant documents before the IPC in due time and that she had amended her application for compensation in the course of the proceedings before the IPC. Moreover, for reasons unknown to the Government, the applicant had never submitted the available valuation reports to the IPC. The Government also stressed that the applicant had failed to reply to the settlement offer made by the “TRNC” authorities for compensation in the amount of GBP 60,000 and she had failed to produce the documents necessary for such a settlement to be effected. In the Government’s view, the applicant had had unsatisfactory communication with her representative before the IPC, which had led to a number of misconceptions on her part with regard to the functioning of the IPC. As a result, the applicant had prematurely lodged an application with the Court, while the relevant proceedings before the IPC were still ongoing. The Government thus considered that her application was premature and/or manifestly ill-founded.

(b) The applicant

60. The applicant contended that she had decided to apply to the Court at the time that she did because the proceedings before the IPC had not been fair and effective, particularly in view of the lengthy delay in reaching a decision in her case. She argued that the IPC had failed to come to a decision even though it was in possession of all the relevant information concerning her property claim. The IPC’s requests for further documents had in fact been aimed at delaying the proceedings and had clearly been used as tactics on the part of the authorities to create further obstacles to an effective resolution of her case. At the same time, the IPC had never asked her to produce the valuation report ‒ even though she had made reference to it when amending the claim ‒ and the respondent had never submitted a report of its own. In this connection, the applicant also argued that the subsequent amendment of her claim had been of a technical nature and not one that could justify the delay in the proceedings. She further contended that in the proceedings before the IPC she had merely had a position of spectator as the proceedings had been conducted hastily and without proper translation from Turkish. Moreover, in her view, the case was not very complex as her property title was evident and the identities of her mother and aunt were easily ascertainable from the available identity documents. Lastly, the applicant argued that the fact that the Xenides-Arestis group of cases remained unexecuted suggested that the IPC remedy was ineffective.

2. The Court’s assessment

61. The Court notes that the respondent Government did not raise an objection as regards the incompatibility ratione personae of the present application with the provisions of the Convention or of its Protocols. However, in view of the fact that the matter calls for consideration by the Court of its own motion (see, for instance, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009), the Court finds it important to note that in the light of its findings in the cases of Loizidou v. Turkey ((merits), §§ 52-57, 18 December 1996, Reports of Judgments and Decisions 1996-VI), Cyprus v. Turkey (cited above, §§ 75-81) and Demopoulos and Others (cited above, §§ 89 and 103), the issues complained of fall within the jurisdiction of Turkey, which has, in the northern part of Cyprus, the obligation to secure to the applicants the rights and freedoms set out in the Convention.

62. The Court will therefore proceed on the assumption that Turkey is responsible for the circumstances complained of by the applicant. Having said that, the Court would stress that this does not in any way call into doubt either the view adopted by the international community regarding the establishment of the “TRNC” or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see Cyprus v. Turkey, cited above, § 90, and Demopoulos and Others, cited above, § 89).

63. As to the Government’s preliminary objection of inadmissibility for non-exhaustion of domestic remedies due to the fact that the proceedings before the IPC are still pending, the Court finds that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that she has been unable to obtain compensation for her property due to the protracted and ineffective proceedings before the IPC. The Court therefore considers that the Government’s objection should be joined to the merits of the applicant’s complaint.

64. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

(a) The applicant

65. The applicant submitted that there was no doubt that she was the owner of the plots of land in question. She had received them by way of a gift from her aunt, who had in turn received them from her father. The applicant further argued that the matter under examination in relation to her property claim had been considered in the light of the Court’s well-established case-law in the cases of Loizidou (cited above) and Cyprus v. Turkey (cited above). In her view, however, it was paradoxical to assert that the IPC remedy was effective, as found in the Demopoulos and Others case (cited above), when the Xenides-Arestis group of cases and the just satisfaction arising from the Cyprus v. Turkey judgment could not be executed. She also pointed to a newspaper article, referring to an interview with the IPC’s President, alleging that Turkey had stopped financing IPC. Moreover, the proceedings before the IPC were ineffective due to the delaying and arbitrary practices of the “TRNC” authorities and the relevant statistics showed that a substantial number of cases were still pending before the IPC. In this connection, the applicant also argued that other applicants before the IPC faced various obstacles in proving their claims and in obtaining the payment of compensation awarded by the IPC.

66. The applicant further contended that since she had lodged her application with the IPC in May 2008 there had been no serious progress in the case and the examination of the substance of her claim had been repeatedly adjourned. In her view, the case in itself was not complex and there had been only one amendment of the claim of a purely technical nature. She contended that the IPC had not so far held a real hearing but only directions meetings for the purpose of assessing her case. The applicant considered that such delaying practices had been continuous, systemic and deliberate and had rendered the remedy before the IPC ineffective. In this connection the applicant pointed to the fact that she had repeatedly been requested to provide further irrelevant documents and certificates, such as those relating to her property title and the identity of her aunt, all of which were already known and available in the file. In particular, she had been requested to clarify the different spellings of her aunt’s name even though the identity documents had been available to the IPC and clearly attested to her aunt’s identity. Similarly, she had been asked to provide further documents concerning her property title, which required her to go through a time-consuming and costly procedure. This had in point of fact been completely unnecessary, because the certificates concerning her property title, including proof of the non-existence of any liabilities on her property, had already existed in the file.

67. The applicant also contended that she had been made an initial settlement offer of GBP 20,000, which she had not been prepared to accept, and then, at the meeting of 24 October 2013, this offer had been increased to GBP 60,000. At the same meeting before the IPC she had not been able to participate effectively as the proceedings had been conducted hastily and in Turkish, without the provision of adequate translation services. Moreover, on several other occasions, her representative had not been allowed to address the IPC on her behalf. On one occasion she had attempted to attend a meeting before the IPC − on 25 April 2013 − but the meeting had been adjourned. The applicant also contended that the IPC had failed to take the necessary measures to ensure effective administration of the proceedings. It had never requested the valuation reports from the parties and had failed to properly address the requests of the respondent “TRNC” Attorney General’s Office for the provision of further documents by declaring such documents unnecessary. In this connection, the applicant also pointed out that her aunt had lived in the occupied northern part of Cyprus and that all the relevant information on her identity and properties had been well known to the “TRNC” administration. In the applicant’s view, all this clearly demonstrated that the proceedings before the IPC had been ineffective.

(b) The Government

68. Relying on the case of Meleagrou and Others v. Turkey (dec.), no. 14434/09, 2 April 2013, the Government argued that the Court had confirmed its finding in Demopoulos and Others v. Turkey (cited above) that the procedure before the IPC provided an adequate and effective remedy for Greek Cypriot property claims relating to properties located in northern Cyprus. However, in the Government’s view, the applicant in the case at issue had failed to avail herself properly of that remedy. In this connection, the Government argued that the applicant’s claim for damages had been excessive and she had asked for an adjournment of the preliminary examination of the case on 25 May 2010 to subsequently amend her compensation claim. However, her amended claim had not corresponded to the reality of the property market in northern Cyprus and the methods used in the 2011 valuation report had been inadequate and inaccurate. Moreover, it had taken her two years to submit the documents requested on 1 June 2010. In addition, the applicant had only been present for the examination of the case before the IPC on 24 October 2013 and it had been for her to substantiate her claim by providing the relevant documents, including those that could have clarified the confusion over the different spellings of the names.

69. In the Government’s view, the applicant’s impression that the IPC remedy was ineffective had not been objectively substantiated but had rather resulted from deficiencies in communication between her and her legal representatives. This was apparent from the fact that the applicant seemed to be unaware that her legal representatives had failed to submit the relevant documents showing the transfer of the property from her aunt to her and had likewise failed to present the relevant valuation reports. In this respect the Government explained that the transfer of properties by Greek Cypriots was not recorded in the “TRNC” registers and applicants were therefore required to produce the relevant documents showing their property title before the IPC. Moreover, the confusion over the spelling of the names could not be clarified on the basis of the identity documents and the mukhtar’s certificates had been needed in that respect. The Government also considered that the documents initially provided by the applicant to the IPC had not clearly shown that she had paid rent for the use of a Turkish Cypriot house. Moreover, the amendment of the applicant’s claim had necessitated the production of further relevant documents, which the applicant had failed to procure and present with the requisite diligence. The Government also stressed that the applicant and her representatives had failed to inform the IPC whether they would accept the friendly settlement offer by the “TRNC” Attorney General.

70. The Government furthermore contended that the execution of the Xenides-Arestis group of cases had nothing to do with the effectiveness of the IPC remedy as those cases had been decided prior to the Demopoulos and Others case (cited above), which had confirmed the effectiveness of the IPC. In the procedure before the IPC, compensation awards were executed and payments made in accordance with the relevant law and the timetable of execution. Moreover, the functions of the Court and the Committee of Ministers in this respect differed. With regard to the proceedings before the IPC, the Government pointed out that the applicant had been represented by lawyers who spoke both Turkish and English and the proceedings before the IPC, as well as the documents submitted to it, had been simultaneously translated into English as the IPC was also made up of two international members. The applicant and her representatives had been given every opportunity to address and to argue her case before the IPC. Moreover, under Rule 7(5) of the IPC Rules, a hearing should be completed within three months and exceptionally within six months. The Meleagrou and Others case (cited above) showed no issue of ineffectiveness arising in this respect. In addition, the Government considered that the significant number of cases decided by means of friendly settlement before the IPC also suggested that the mechanism functioned and there were only a few cases that ended before the High Administrative Court. Taking all these factors into account, in the Government’s view there was nothing to call into question the effectiveness and adequacy of the IPC remedy.

2. The Court’s assessment

(a) Preliminary points

71. The Court observes at the outset that it has been provided with official certificates of ownership from the Department of Lands and Surveys of the Republic of Cyprus proving that the applicant is the owner of the relevant property. There is also sufficient evidence before the Court showing that the applicant had received the property in question in 1997 by way of a gift from her aunt, who owned it prior to the Turkish military intervention in 1974, and that in 2008 she had received an additional share in one of the plots concerned from her mother (see paragraphs 8 and 18 above).

72. In these circumstances, in accordance with its findings in the cases of Loizidou (cited above, §§ 42-47 and 62), Cyprus v. Turkey (cited above, § 180), Demopoulos and Others (cited above, § 107) and Xenides-Arestis v. Turkey ((dec.), no. 46347/99, 14 March 2005, and (merits) § 28, 22 December 2005), for the purpose of its assessment under Article 1 of Protocol No. 1, the applicant must be regarded as the legal owner of the property in question.

73. With regard to the nature of the infringement of the property rights of displaced Greek Cypriots in the “TRNC”, in the Loizidou case (cited above, §§ 63-64) the Court reasoned as follows:

“63. However, 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 (see paragraphs 49-50 above), 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 (see, mutatis mutandis, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 14, para. 25).

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.”

74. The Court confirmed the above findings in the case of Cyprus v. Turkey (cited above, §§ 184-189) and in subsequent cases concerning the complaints of Greek Cypriots concerning interference with their property rights in the “TRNC” (see Demopoulos and Others, cited above, § 71; see also, for instance, Demades v. Turkey, no. 16219/90, §§ 44-46, 31 July 2003; Xenides-Arestis, cited above, §§ 29-32, and Lordos and Others v. Turkey, no. 15973/90, §§ 67-70, 2 November 2010).

75. The Court further notes, as it did in Demopoulos and Others (cited above, § 108), that the Turkish Government no longer contest their responsibility under the Convention for the areas under the control of the “TRNC” and that they have, in substance, acknowledged the right of Greek Cypriot owners to remedies for breaches of their rights under Article 1 of Protocol No. 1. Indeed, in Demopoulos and Others, the Court recognised this acknowledgment as a significant factor in the provision of the IPC mechanism, which, by applying the Court’s findings in the earlier cases, most notably in the Xenides-Arestis pilot judgment (cited above), sought to secure effective redress for Convention violations identified in the Court’s judgments with regard to the property rights of Greek Cypriots in the “TRNC”.

76. With regard to the effectiveness of the IPC mechanism, in Demopoulos and Others (cited above, §§ 127-128), following a careful examination of all the relevant institutional and procedural aspects of that remedy, the Court reasoned as follows:

“127. The Court finds that Law no. 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with property owned by Greek Cypriots. The applicant property owners in the present cases have not made use of this mechanism and their complaints under Article 1 of Protocol No. 1 must therefore be rejected for non-exhaustion of domestic remedies. It is satisfied that Law no. 67/2005 makes realistic provision for redress in the current situation of occupation that is beyond this Court’s competence to resolve.

128. Lastly, it would stress that this decision is not to be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution. If, however, at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above. The Court’s ultimate supervisory jurisdiction remains in respect of any complaints lodged by applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress.”

77. Following the adoption of the Demopoulos and Others judgment, the Court declared inadmissible for non-exhaustion of domestic remedies all applications that had not already been declared admissible and where the applicants had not presented a claim to the IPC in accordance with Law no. 67/2005 (see, for instance, Cacoyanni and Others v. Turkey (dec.), nos. 55254/00 et al., 1 June 2010; Papayianni and Others v. Turkey (dec.), nos. 479/07 et al., 6 July 2010; Marios Eleftheriades and Others v. Turkey (dec.), nos. 3882/02 et al., 5 October 2010; Papaioannou and Others v. Turkey (dec.), no. 58678/00, 7 December 2012; and Efthymiou and Others v. Turkey (dec.), nos. 40997/02, 7 May 2013).

78. For other applications which had been declared admissible or where the Court had ruled on the merits prior to the adoption of the Demopoulos and Others judgment, the Court proceeded with the adoption of judgments on the merits and/or awards of just satisfaction (see, for instance, Lordos and Others, cited above; see also Gavriel v. Turkey (just satisfaction), no. 41355/98, 22 June 2010; Solomonides v. Turkey (just satisfaction), no. 16161/90, 27 July 2010; Christodoulidou v. Turkey (just satisfaction), no. 16085/90, 26 October 2010; Anthousa Iordanou v. Turkey (just satisfaction), no. 46755/99, 11 January 2011; Loizou and Others v. Turkey (just satisfaction) (final judgment), no. 16682/90, 24 May 2011). These cases form part of the aforementioned Xenides-Arestis group of cases in the execution process (see paragraph 53 above).

79. The Court has also examined an application (Meleagrou and Others, cited above) − lodged after Demopoulos and Others and where the applicants had presented their claims to the IPC − which was declared inadmissible on the following two grounds. Firstly, as regards the applicants’ complaints under Article 1 of Protocol No. 1, Article 8 and Article 14 concerning certain plots of land owned by a registered company, the Court found that the complaints failed by reason of incompatibility ratione materiae on the grounds that, as shareholders, the applicants could not claim property rights in land owned by a company which was still in existence. As to the ongoing refusal to return certain of their plots of land to them, the Court found that, although the applicants had submitted claims for restitution to the IPC, they had not made claims either for exchange of land in the south of Cyprus or for pecuniary compensation, which would also have permitted the award of damages for loss of use or non-pecuniary compensation if restitution was not afforded. That failure meant the applicants had not made proper use of the IPC remedy. Secondly, in respect of the applicants’ complaints under Article 6 § 1, the Court found that there was no evidence that the proceedings had been unfair or that the IPC was biased or lacking independence. As regards their complaint as to the length of the proceedings the Court found that a period of four years and eight months (before the IPC and on appeal to the “TRNC’s” High Administrative Court) was not unreasonable given the newness of the proceedings and what had been involved in their adjudicating the applicants’ claims.

80. The applicant in the present case challenges the effectiveness of the IPC remedy, arguing that the procedure before the IPC by which she sought compensation for her property located in the “TRNC” has been protracted and ineffective. The Court will embark on its determination of these issues below, taking full account of the particular circumstances of the case and its findings in the aforementioned cases, particularly the principles laid down in the Demopoulos and Others judgment.

81. At this point, the Court finds it important to note that there is nothing in the applicant’s arguments and submissions which could, in itself, at present call into question the effectiveness of the IPC remedy as such. In particular, the Court is unable to accept the applicant’s argument that the difficulties in the execution of the just satisfaction awards in the Xenides-Arestis group of cases undermine the effectiveness of the IPC remedy. In this context it should be remembered that the just satisfaction awards in the cases belonging to the Xenides-Arestis group have been adopted separately from the considerations relating to the assessment of the effectiveness of the IPC remedy in the Demopoulos and Others judgment (see paragraphs 77-78 above; see also Demopoulos and Others, cited above §§ 80-82; and the approach in Xenides-Arestis v. Turkey (just satisfaction), no. 46347/99, § 37, 7 December 2006, and Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, § 63 in fine, ECHR 2014).

82. Moreover, although it goes without saying that Contracting States are bound, in any event, to comply with the Court’s judgments (see Demopoulos and Others, cited above § 81), it should be noted that the above-mentioned difficulties concerning the just satisfaction awards in the Xenides-Arestis group of cases have arisen in the context of processes and considerations linked to the Committee of Ministers’ supervision of the execution of the Court’s judgments (see paragraphs 54 above). On the other hand, the IPC mechanism and the redress provided by that mechanism are dependent on the relevant domestic arrangements and mandatory budgetary inclusions (see paragraphs 41-43 and 45 above) that were found to be adequately established in the Demopoulos and Others judgment (cited above, § 125). At present, there is no conclusive evidence allowing the Court to call the adequacy of such arrangements into question.

83. In so far as the applicant asserted that the IPC mechanism was ineffective due to the significant number of cases pending before it and the alleged delaying and arbitrary practices of the “TRNC” authorities, the Court does not consider it possible, on the basis of the evidentiary material and information available to it, to reach such a general conclusion as to the functioning of the IPC remedy. The fact that there is currently a high number of pending claims cannot be relied on to prove that any particular claims have not been or will not be handled with due expedition (see Demopoulos and Others, cited above, § 125).

84. In this respect it is noted that in the above-cited Meleagrou and Others case, the Court did not find that the proceedings before the IPC had been unduly protracted or otherwise ineffective (see paragraph 79 above). Moreover, there are other cases before the Court showing that individual Greek Cypriot applicants have terminated their cases before the IPC in a satisfactory manner (see Alexandrou v. Turkey (just satisfaction and friendly settlement), no. 16162/90, 28 July 2009, and Angoulos Estate Ltd v. Turkey (dec.), no. 36115/03, 9 February 2010) and that the awards made by the IPC have been duly enforced (see Loizou v. Turkey (dec.), no. 50646/15, § 81, 3 October 2017).

85. It is, of course, possible that the particular structural arrangement of a remedy could result in an excessive length of proceedings in the implementation of that remedy and consequently to a detraction from its effectiveness (see, for instance, Bellizzi v. Malta, no. 46575/09, § 42, 21 June 2011). However, there is nothing at present persuading the Court to conclude that the possible delays or difficulties arising in the processing of particular cases before the IPC call into doubt its findings in the Demopoulos and Others case (cited above, §§ 124-126), according to which that remedy is accessible and capable of efficiently delivering redress.

86. Indeed, and without prejudice to its findings regarding the applicant’s specific arguments concerning her case before the IPC, the Court emphasises that it is perfectly possible that a remedy that is in general found to be effective operates inappropriately in the circumstances of a particular case. This does not, however, mean that the effectiveness of the remedy as such, or the obligation of other applicants to avail themselves of that remedy, should be called into question (see, for instance, V.K. v. Croatia, no. 38380/08, §§ 115-116, 27 November 2012). Nevertheless, the Court would stress that it remains attentive to the developments in the functioning of the IPC remedy and its ability to effectively address Greek Cypriot property claims.

87. Bearing in mind the above considerations, and without calling into question the effectiveness of the IPC remedy as such, the Court will deal below with the applicant’s allegations with regard to the manner in which the proceedings before the IPC operated in her particular case.

(b) General principles

88. The Court reiterates that the essential objective of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions. However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his or her effective enjoyment of possessions (see, amongst many others, Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004-V; Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004-XII; and Tunnel Report Limited v. France, no. 27940/07, § 36, 18 November 2010).

89. The boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the part of the State or in terms of an interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole (see, for instance, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52; Sargsyan v. Azerbaijan [GC], no. 40167/06, § 220, ECHR 2015; see also Tunnel Report Limited, cited above, § 37).

90. For the purposes of the first sentence of the first paragraph of Article 1 of Protocol No. 1, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In each case involving an alleged violation of Article 1 of Protocol No. 1, the Court must ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden. In assessing compliance with that requirement, the Court must make an overall examination of the various interests at issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. In that context, it should be stressed that uncertainty - be it legislative, administrative or arising from practices applied by the authorities - is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 108, ECHR 2014; see also Kirilova and Others, cited above, § 106, with further references).

91. The Court notes that the applicant’s complaints concerning the ineffectiveness of the proceedings before the IPC in which she sought compensation for her property located in the “TRNC” revolve around two principal issues. The first concerns the alleged lack of adequate opportunity for the applicant and her representatives to participate effectively in the proceedings − particularly in the light of the interpreting services provided − and to address the IPC; and the second concerns the protracted length of the proceedings, which commenced in 2008 and are still ongoing. The Court will address these two issues in turn.

92. With regard to the former issue, as regards the complaint relating to the interpreting services, the Court has already observed in Demopoulos and Others (cited above, § 126), that the IPC works in Turkish and in English, that the latter is in common usage in Cyprus, and that interpreters are always available during IPC proceedings (see also paragraph 43 above, Rule 7(1) in fine of the IPC Rules). Moreover, the Court notes, as it did in Meleagrou and Others (cited above, § 19), that the applicant was represented by lawyers who understood both Turkish and English and that, in addition to the interpreting facilities at the hearings, the applicant was able to obtain English translations of key documents, which are now also available to the Court. In this connection, it is also noted that the applicant did not complain to the IPC at the time that the inadequate interpretation and translation facilities were impeding her effective participation in the proceedings. In view of these considerations, the Court finds that no indication of unfairness or a lack of effectiveness of the proceedings arises in the circumstances.

93. The same holds true for the applicant’s complaint that she and her representatives were unable to properly address the IPC during the proceedings. This complaint is unsubstantiated. The applicant’s representatives were given an adequate opportunity to address the IPC and during the proceedings they never raised the issue of their inability to present the applicant’s arguments properly. Nor is there any reason for the Court to doubt that the applicant would have been able to attend the proceedings before the IPC, if she had so wished, and to raise all the issues she considered relevant for her case. Accordingly, there is nothing that persuades the Court to conclude that in this respect the proceedings fell short of the requirement of effectiveness.

94. With regard to the allegedly protracted length of proceedings concerning the applicant’s compensation claim, the Court notes that, in contrast to Meleagrou and Others (cited above) ‒ where the proceedings lasted four years and eight months before the IPC and the High Administrative Court of the “TRNC” ‒ the proceedings in the case at issue commenced in May 2008 and to date they have been pending before the IPC for some nine years without a formal resolution of the case being reached. The Court has already found that such an inordinate length of proceedings concerning the resolution of an applicant’s property claim is capable of seriously undermining their remedial efficacy from the perspective of Article 1 of Protocol No. 1 (see, for instance, Kirilova and Others, cited above, § 117, and Naydenov, cited above, §§ 81-84). Bearing that in mind, the Court considers that the Government would have to provide highly convincing and plausible reasons to persuade it to reach a different conclusion in the present case.

95. In this connection, the Court notes that a significant delay in the processing of the applicant’s compensation claim occurred in the initial stages of the proceedings before the IPC as it took the “TRNC” Attorney General two years to submit a reply to the applicant’s claim (see paragraphs 13 and 16 above). Although such an initial delay in itself is not sufficient to draw any conclusion concerning the lack of effectiveness of the proceedings, it nonetheless significantly contributed to an overall length of time which can be considered unacceptable for the resolution of a property claim under Article 1 of Protocol No. 1.

96. The Court also notes that the relevant IPC Rules require the competent “TRNC” authorities to submit their initial observations concerning a property claim within a period of thirty working days following submission of the claim (see paragraph 43 above, Rule 3(8) of the IPC Rules). However, although this time-limit was significantly overstepped in the case at issue, the IPC took no action aimed at ensuring that the parties’ submissions were properly obtained and administered. In this connection, the Court wishes to reaffirm the importance of administering justice without delays which might jeopardise its effectiveness and credibility. Indeed, the Court has already observed that excessive delays in the administration of justice constitute a significant threat, in particular as regards respect for the rule of law (see Di Mauro v. Italy [GC], no. 34256/96, § 23, ECHR 1999-V).

97. The Court furthermore notes that the course of the proceedings before the IPC was marked by repeated and successive requests by the “TRNC” authorities for the applicant to submit additional documents concerning her property claim. In this connection it should be noted that the IPC again remained passive as regards these repeated requests, making no effort to assess their reasonableness or relevance or to ensure that the parties’ submissions were properly obtained and administered. The Court considers that such a passive attitude on the part of the IPC may have contributed to a lack of coherence in the proceedings and prolongation of the examination of the case for a significant period of time.

98. In this connection it is salutary to reiterate that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate for it to determine which documentary evidence should be submitted in proceedings (see, amongst other examples, Demopoulos and Others, cited above, § 69 in fine). The Court observes, for instance, that at the directions hearing in June 2010 the “TRNC” Attorney General’s representative requested that a document showing that the applicant used a Turkish Cypriot house in the South should be provided, even though such a document already existed in the file (see paragraphs 14 and 18 above). Similarly, at a preliminary hearing in April 2013 the “TRNC” representatives asked for additional certificates from the mukhtar, even though the applicant had already provided a certificate that left no doubt as to her and her aunt’s identity (see paragraphs 23 and 27 above).

99. Moreover, after the applicant had submitted all the requested documents in support of her initial and amended claim (see paragraphs 14, 23, 26 and 28 above), in October 2013, when the proceedings had already been pending for some five and a half years, the “TRNC” representatives asked for further documents to be provided. This request concerned in particular the clarification of the different spellings of the applicant’s mother’s and her aunt’s names, the marital status and succession of her aunt and the liabilities status of the property in question (see paragraph 29 above). However, the Court observes that the different spellings of the names had already been clarified several times by the mukhtar’s certificates, which also contained references to the numbers of the identity documents of the individuals in question. Furthermore, the marital status and the succession of the applicant’s aunt was apparent from the previously obtained documents (see paragraphs 23 and 26 above) and, in support of her initial claim, the applicant had already provided evidence that there were no mortgages, liabilities or other restrictions on the property in question (see paragraph 14 above). Similarly, the Court notes that it was clear from the outset that the applicant’s aunt had gifted the applicant the property in question while she was still alive in 1997, whereas an issue in that respect was raised for the first time at the meeting in March 2017, almost nine years after the applicant lodged the compensation claim.

100. The Court notes that, without having critically scrutinised the “TRNC” authorities’ requests, the IPC on numerous occasions adjourned the examination of the case. In this connection it is also noted that ‒ despite the applicant’s request of 16 January 2014 (see paragraph 31 above) ‒ the IPC scheduled a further examination of the case only two years later, in March 2016 (see paragraph 32 above), which again protracted the already lengthy proceedings unnecessarily. The further course of the proceedings was marked by the procedural issues relating to the applicant’s Turkish Cypriot representatives’ withdrawal from the case and the improper summoning of the applicant for the hearing on 12 October 2016 (see paragraphs 32-37 above) as well as an additional adjournment of the examination of the case in March 2017.

101. Having noted the above, the Court does not consider it insignificant that the applicant failed to duly submit some of the relevant documents in support of her application before the IPC (see paragraph 18 above) and that she provided some of the documents only two years later (see paragraph 22 above). However, it should be noted that in the meantime the applicant had acquired ownership of a further share of one of the five plots in question from her mother, which necessitated the amendment of her initial claim, and that in the period in question she had obtained a significant number of documents clarifying the circumstances of her property claim (see paragraphs 20-23 above).

102. The Court is also mindful of the applicant’s argument that the process of obtaining such documents was time-consuming (see paragraph 66 above; see also Demopoulos and Others, cited above, § 124 in fine). In any case, the Court does not consider it plausible that the period of nine years during which the proceedings have been pending before the IPC can be explained by the applicant’s conduct alone.

103. In the Court’s view, the protracted length of the proceedings in the case at hand was due chiefly to the IPC’s manner of proceeding. Much of it could have been avoided if the IPC had, from the outset, tried to identify the controversial points and gather evidence in relation to them in a more efficient manner (see paragraph 43 above, Rule 7(1) of the IPC Rules; and compare Finger v. Bulgaria, no. 37346/05, § 102, 10 May 2011, and Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I). However, it failed to do so and thereby allowed the proceedings to drag on over a significant number of years without a final resolution of the case being reached.

104. In view of the above considerations, the Court finds that, in the present case, the IPC did not act with coherence, diligence and appropriate expedition concerning the applicant’s compensation claim as required under Article 1 of Protocol No. 1.

105. This is sufficient for the Court to conclude that there has been a violation of Article 1 of Protocol No. 1.

106. It follows that the Government’s preliminary objection, which has been joined to the merits (see paragraph 63 above), must be rejected. However, the Court would stress that, for the present, the IPC remedy remains a remedy to be exhausted by other applicants who wish to invoke their rights under the Convention before the Court (see paragraphs 85-87 above; see also Demopoulos and Others, cited above, § 128).

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1

107. The applicant complained of a violation of Article 14 of the Convention on account of discriminatory treatment against her in the enjoyment of her right under Article 1 of Protocol No. 1. She alleged that this discrimination had been based on her national and ethnic origin, language and religious beliefs.

108. The Government disputed that claim.

109. The Court points out that in previous cases relating to Greek Cypriot property claims in the northern part of Cyprus it has found that it was not necessary to carry out a separate examination of the admissibility and merits of the complaint under Article 14 of the Convention. The Court does not see any reason to depart from that approach in the present case (see, most recently, Lordos and Others, cited above, § 85).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

110. 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

111. With regard to the claim for pecuniary damage, within the period fixed for the submission of a claim for just satisfaction in accordance with Rule 60 of the Rules of Court, the applicant claimed restitution or, alternatively, compensation for the loss of use, interest and the current value of her plots of land. Her compensation claim was based on the 2011 valuation report and was set at EUR 2,690,962 (see paragraph 11 above). She stressed that this did not imply that she was seeking compensation for purported expropriation, since she considered that she was still the legal owner of the property in question. In respect of non-pecuniary damage, the applicant claimed EUR 100,000.

112. The Government argued that the applicant’s claim in respect of pecuniary damage was excessive and unfounded. The Government also considered the applicant’s claim in respect of non-pecuniary damage was unfounded in any respect.

2. The Court’s assessment

113. The Court would stress at the outset that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see, amongst many others, Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, § 33, ECHR 2014).

114. Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical ability to do so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 33, ECHR 2000-XI, and Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 80, ECHR 2014).

115. As a rule, the fact that an applicant may still receive an award in respect of pecuniary damage under the domestic legal proceedings does not deprive the applicant of his or her right to claim compensation under Article 41 of the Convention (see, for instance, Mikheyev v. Russia, no. 77617/01, § 155, 26 January 2006, and S.L. and J.L. v. Croatia (just satisfaction), no. 13712/11, § 15, 6 October 2016, with further references). However, exceptionally, if the circumstances of the case so warrant, the Court may decide not to grant compensation as the applicant can obtain compensation at domestic level (see, for instance, Mascolo v. Italy, no. 68792/01, § 55, 16 December 2004, and Bistrović v. Croatia, no. 25774/05, § 58, 31 May 2007).

116. As to the pecuniary damage claimed by the applicant, having regard to the procedural nature of the violation found under Article 1 of Protocol No. 1, related to the IPC’s lack of coherence, diligence and appropriate expedition concerning the applicant’s compensation claim (see paragraph 104 above), the Court considers that it is not necessary to award any amount in respect of pecuniary damage as the further course of the proceedings before the IPC, conducted in compliance with the requirements of Article 1 of Protocol No. 1, should allow the applicant to obtain compensation for her property claim (see, mutatis mutandis, Mascolo, cited above, § 55, and Bistrović, cited above, § 58).

117. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage - such as distress resulting from the ineffectiveness of the proceedings before the IPC - which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 7,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

118. In the period fixed for submission of a claim for just satisfaction in accordance with Rule 60 of the Rules of Court, the applicant sought in total EUR 7,825 plus VAT, which covered the costs and expenses of her legal representation (EUR 6,325) and the cost of obtaining the valuation report (EUR 1,500).

119. The Government considered that the applicant’s claim was unfounded as she had failed to cooperate appropriately with her representatives before the IPC and before the Court.

120. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,325, plus any tax that may be chargeable to the applicant, in respect of her claim for costs and expenses incurred until the date of the present judgment.

FOR THESE REASONS, THE COURT

1. Joins, unanimously, to the merits the Government’s preliminary objection concerning the non-exhaustion of domestic remedies and rejects it;

2. Declares, unanimously, the applicant’s complaint that the proceedings by which she sought compensation for her property located in the “TRNC” had been protracted and ineffective, under Article 1 of Protocol No. 1, admissible;

3. Holds, unanimously, that there has been a violation of Article 1 of Protocol No. 1;

4. Holds, unanimously, that there is no need to examine separately the admissibility and merits of the complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1;

5. Holds, by six votes to one,

(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 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 6,325 (six thousand three hundred and twenty-five 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;

6. Dismisses, by six votes to one, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Karakaş;

(b) partly dissenting opinion of Judge Bianku.

R.S.
S.H.N.

[1] Unit of area used in the Ottoman Empire and still used, in various standardised versions, in many countries which were formerly part of the Ottoman Empire. It was defined as “forty standard paces in length and breadth”, but varied considerably from place to place. It is considered to be the equivalent of about a quarter of an acre. See Demopoulos and Others v. Turkey (dec.) [GC], no. 46113/99, ECHR 2010 at paragraph 12, footnote 1.

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You are here: BAILII >> Databases >> European Court of Human Rights >> JOANNOU v. TURKEY - 53240/14 (Judgment : Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria (Art. 35-1) Exhaustion of domestic reme...) [2017] ECHR 1133 (12 December 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1133.html Cite as: [2017] ECHR 1133, ECLI:CE:ECHR:2017:1212JUD005324014, CE:ECHR:2017:1212JUD005324014