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THIRD
SECTION
CASE OF XENIDES-ARESTIS v. TURKEY
(Application
no. 46347/99)
JUDGMENT
(Just satisfaction)
STRASBOURG
7 December 2006
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Xenides-Arestis v. Turkey,
The
European Court of Human Rights (Third Section),
sitting as a Chamber composed of:
Mr G. Ress, President,
Mr I.
Cabral Barreto,
Mr L. Caflisch,
Mr R.
Türmen,
Mr J. Hedigan,
Mr K.
Traja,
Mrs A. Gyulumyan, judges,
and Mr V.
Berger, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE AND FACTS
- The
case originated in an application (no. 46347/99) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mrs Myra Xenides-Arestis
(“the applicant”), on 4 November 1998.
- In
a judgment delivered on 22 December 2005 (“the principal
judgment”), the Court dismissed the objection on the
applicant’s victim status and found continuing violations of
Article 8 of the Convention by reason of the complete denial of the
applicant’s right to respect for her home and of Article 1 of
Protocol No. 1 by virtue of the fact that the applicant was denied
access to and control, use and enjoyment of her property and any
compensation for the interference with her property rights.
Furthermore, it found that it was not necessary to carry out a
separate examination of the applicant’s complaint under Article
14 in conjunction with the above provisions (Xenides-Arestis v.
Turkey, no. 46347/99, §§ 22, 32 and 36 and points
1-4 of the operative provisions).
- Under
Article 41 of the Convention, the applicant sought just satisfaction
of 587,399 Cyprus pounds (CYP) by way of pecuniary damage concerning
the period between 28 January 1987, the date of the acceptance by
Turkey of the compulsory jurisdiction of the Court, and the end of
2005. Two valuation reports, setting out the basis for the
calculation of the applicant’s loss, were appended to the
applicant’s observations. Furthermore, the applicant claimed
CYP 160,000 in respect of non-pecuniary damage and CYP 131,867.97 for
costs and expenses incurred before the Court.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary and non-pecuniary damage,
the Court reserved it. However, it awarded the applicant 65,000 euros
(EUR) in respect of costs and expenses.
5. The
Court had examined the implementation of the preceding compensation
law, the “Law on Compensation for Immovable Properties Located
within the Boundaries of the Turkish Republic of Northern Cyprus”
(“Law no. 49/2003”),
in the present case, at the admissibility stage and had ruled that
the remedy proposed under the above law did not satisfy the
requirements under Article 35 § 1 of the Convention in that it
could not be regarded as an “effective” or “adequate”
means for redressing the applicant’s complaints (see
Xenides-Arestis v. Turkey (dec.),
no. 46347/99, decision of 14 March 2005, §
50).
6. The
Court, in the principal judgment, further held that “the
respondent State must introduce a remedy which secures genuinely
effective redress for the Convention violations identified in the
instant judgment in relation to the present applicant as well as in
respect of all similar applications pending before it, in accordance
with the principles for the protection of the rights laid down in
Article 8 of the Convention and Article 1 of Protocol No. 1 and in
line with its admissibility decision of 14 March 2005. Such a remedy
should be available within three months from the date on which the
present judgment is delivered and redress should be afforded three
months thereafter” (§ 40). Furthermore, the parties were
invited to submit, within three months, from the date on which the
judgment became final in accordance with Article 44 § 2 of
the Convention, their written observations on the issue of pecuniary
and non-pecuniary damage and, in particular, to notify the Court of
any agreement they might reach (ibid., § 50, and point 6 of the
operative provisions). Pending the implementation of the relevant
general measures by the Government, the Court adjourned its
consideration of all applications deriving from the same general
cause (ibid., § 50).
- The
Government filed observations on 21 March 2006 and, subsequently, the
applicant and the Government each filed observations on 21 June 2006.
The applicant submitted updated claims in respect of just
satisfaction.
- The
Government of Cyprus, who had made use of their right to intervene
under Article 36 of the Convention, submitted observations on
16 August 2006.
- The
Government filed additional observations on 10 and 11 October 2006.
- Subsequent
to the adoption of the principal judgment in the instant case, the
authorities of the “Turkish Republic of Northern Cyprus”
(“TRNC”) enacted the new compensation law, the “Law
for the Compensation, Exchange and Restitution of Immovable
Properties” (“Law no. 67/2005”) which entered
into force on 22 December 2005 and the “By-Law made
under Sections 8 (2) (A) and 22 of the 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” (“Law no. 67/2005”) which
entered into force on 20 March 2006.
- The
“Immovable Property Commission” (hereinafter “the
Commission”), which was established under “Law no.
67/2005” for the purpose of examining applications made in
respect of properties within the scope of the aforementioned law, is
composed of five to seven members, two of whom are foreign members,
Mr Hans-Christian Krüger
and Mr Daniel Tarschys,
and has the competence to decide on the restitution, exchange of
properties or payment of compensation. A right of appeal lies to the
“TRNC” High Administrative Court.
- The
Government submitted that a total of sixty applications had been
lodged with the Commission and that the examination of nine of these
had already been concluded. In six of these applications the
applicants received a payment by way of compensation and, in the
remaining applications, the Commission decided on the restitution of
the properties in question.
THE LAW
- 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 damage
1. The parties’ submissions
(a) The applicant
- The
applicant emphasised at the outset that she did not claim
compensation for any purported expropriation of her property since
she was still the legal owner of her property and no issue of
expropriation arose. Her claim was thus confined to the loss of use
of the land and the consequent lost opportunity to lease or rent it.
Relying on two valuation reports assessing the value of her property
and the return that could be expected from it, she claimed
CYP 716,101 by way of pecuniary damage concerning the period
between 28 January 1987, the date of the acceptance by Turkey of the
compulsory jurisdiction of the Court, and the end of 2006.
- The
method employed in the valuation reports was the comparison method of
valuation in conjunction with the cost-of-construction method for the
first property and the comparison method of valuation for the second:
the estimation of the annual rent value was derived as a percentage
of the capital value of the property. The market price of the
property was calculated as it had stood in 1974 and increased by
approximately 5.5% per year with regard to the first property and 10%
per year with regard to the second, in order to calculate the value
that the property would have had if Famagusta had not been occupied
by the Turkish army. The market value of the applicant’s share
in the first property was estimated as being CYP 12,675 on 1
August 1974 and in the second property as CYP 25,000. It was
emphasised that the area of Famagusta was,
among other things, one of the most popular tourist resorts and could
reasonably be expected to have enjoyed increases in rent higher than
the average of the unoccupied areas had the invasion not taken place.
- The
total sum claimed by way of pecuniary damage represented the
aggregate amount of ground rent that could have been collected from
22 January 1987 until 31 December 2006, calculated as 5% for the
first property and 6% for the second of the estimated market value of
the properties for each of the years in question, plus interest from
the date on which such rent was due until the date of payment. For
that period, therefore, the sum with regard to the first property
amounted to CYP 229,250 (loss of rent for her home) and for the
second CYP 486,851 (loss of use of her land). Both amounts claimed
included interest on the rent at a rate of 8% from 1987 up to the end
of 2000 and 6% from 2001 until the end of 2006. The examination of
the trends in rent increases was made on the basis of the Consumer
Price Index 1960-2005 in respect of Rents and Housing, issued by the
Department of Statistics and Research of the Government of Cyprus.
- In
her observations the applicant made certain proposals to the Court
for the assessment of just satisfaction.
- With
regard to the new remedy proposed by the Turkish Government, the
applicant firstly emphasised that the question of domestic remedies
was a question of admissibility that the Court had already ruled on
in its admissibility decision of 14 March 2004. In any event, the
applicant, referring to the Court’s judgment in the case of
Scordino v. Italy (Scordino v. Italy (no. 1) [GC],
no. 36813/97, ECHR 2006 ...) argued that it was
inappropriate to require an individual who had obtained judgment
against the State at the end of legal proceedings to then bring
enforcement proceedings to obtain just satisfaction. Therefore, in
the applicant’s opinion, any examination of the purported
remedy which was introduced after the Court had found violations of
the Convention fell outside the scope of the application.
- The
applicant further challenged the legal validity of “Law
no. 67/2005” referring to the findings of the Court in its
judgments in the cases of Loizidou v. Turkey (judgment of
18 December 1996, Reports of Judgments and Decisions
1996 VI, §§ 44, 46-47), and Cyprus v. Turkey
[GC], no. 25781/94, § 186, ECHR 2001 IV) with regard
to Article 159 of the “TRNC” Constitution. The applicant
stressed that, as decided by the Court in its above judgments,
displaced Greek-Cypriots who owned property in northern Cyprus, such
as the applicant, could not be deemed to have lost title to their
property as a result of that provision for the purposes of Articles 8
of the Convention and 1 of Protocol No. 1 and remained legal
owners of the land. However, under the mechanism set up by the new
Law compensation was paid as if lawful expropriation had occurred.
- In
any event, the applicant contested the adequacy and effectiveness of
the new remedy proposed by the respondent Government and raised a
number of points in this respect. She argued that the respondent
Government had failed to restore access, use and enjoyment to her of
her home and property. The provisions of the Law fell short of the
respondent Government’s obligations to cease its wrongdoing by
putting an end to the violations found by restoring displaced
persons’ peaceful enjoyment of their homes and properties and
to offer the victims full reparation for its wrongdoing so as to wipe
out the consequences of its wrongful conduct.
- The
applicant also emphasised that the Law was vague and plagued with
substantive and procedural deficiencies and imposed an inappropriate
and unfair standard of proof on applicants. In this connection, she
noted that no provision was made by the new Law or other “TRNC
legislation” for any remedies which could be resorted to by
individuals concerned, such as the applicant, to contest the
exclusion from their properties and home; the legality of the
interference with the applicant’s property and home was
unassailable before the “TRNC” authorities, including the
“TRNC” courts and the Commission. Although in cases, such
as hers, there were pre-existing findings of violations of Convention
rights by the Court, in the vast majority of applications pending
before the Court, no judgment on the merits had been yet delivered.
- Furthermore,
although the new Law purported to provide restitutio in integrum
to property owners, in reality it would fail to do so in the vast
majority of cases due to the many limitations imposed. The applicant
provided detailed submissions in this respect. She emphasised, inter
alia, the non-mandatory nature of the restitution even when an
immovable property was categorised as “returnable” and
the risks inherent in a claim for restitution of immovable property
which was categorised as “non-returnable”. She also
pointed out that claims were determined with reference to political
questions, in particular to “the comprehensive settlement of
the Cyprus Problem” despite the fact that the Law was supposed
to provide a legal remedy and regardless of the Court’s
jurisprudence on this matter. Furthermore, the fenced up area of
Famagusta (Varosha), where the applicant’s home and property
were located, was an area under the direct control of the Turkish
army to which no one was allowed access apart from military
personnel. Consequently, as a military area, it fell within one of
the excluded categories of properties in the Law. The applicant thus
argued that the purported remedy was not applicable to her case since
she was not eligible to apply. In addition, she noted that a recent
judgment of the “TRNC Famagusta District Court” declared
that the area of Famagusta belonged to the muslim religious trust
(the Evkaf) and not to displaced Greek-Cypriot persons: (1) Vaqf
organisation and the Department for Religious Affairs, as the Trusted
Advisor and Representative of the Abdullah Pasha Vaqf, Nicosia
(2) Vaqf organisation and the Department for Religious Affairs,
Nicosia v. the Attorney-General of the TRNC, Nicosia, dated
27 December 2005.
- As
regards the issue of property exchange, the applicant considered that
the “TRNC” authorities did not have the lawful authority
to compromise Turkish Cypriots’ rights by purporting to
exchange their properties in southern Cyprus. Finally, the applicant
maintained that no provision was made in the Law in respect of
default interest or costs and expenses incurred in the process of
seeking a remedy before the Commission and/or the “TRNC
courts”.
- Finally,
the applicant considered that in view, inter alia, of the
prevailing legal and political context, the practical effectiveness
and accessibility of the proposed remedy and the delay in the
processing of such cases before the Court, Greek Cypriots, including
the applicant, could not be required to apply to the Commission.
(b) The Government
- The
Government submitted that the new mechanism which had been set up via
“Law no. 67/2005”, subsequent to and on the basis of the
principal judgment, constituted an effective domestic remedy in line
with that judgment and was capable of providing sufficient redress to
the present applicant and other persons who had similar applications
pending before the Court. They explained that under the new Law it
was open to the applicant to lodge an application with the Commission
in order to claim compensation for the damage she had allegedly
sustained. In this regard, they noted that under the Law persons who
had applied to the Court before the entry into force of the law,
claiming that their right of ownership of movable and immovable
properties were infringed, could apply to the Commission. The Law
also provided for a right to appeal to “TRNC” High
Administrative Court and, subsequently, to the Court.
- In
this connection, the Government noted that the applicant had rejected
the Commission’s invitation to consider her claims. In view of
this, the Commission had proceeded to examine ex officio the
applicant’s claims. In its opinion the Commission concluded
that, judging on an equitable basis, the pecuniary damages to be
awarded to the applicant amounted to CYP 466,289. This amount
included CYP 246,289 for loss of use and CYP 220,000 in respect
of the value of the applicant’s share in the property. In
reaching these amounts the Commission took into consideration the
interest rates of the Central Bank of Cyprus between 1974 and 2005
and assessed the annual income that the properties would have yielded
on the basis of the valuation method adopted by the applicant. The
value of the share in the relevant properties was calculated by
applying interest rates on the market value of the properties in 1974
for the period 1 January 1990 until 1 December 2005. The
Commission estimated that in August 1974 the market value of the
applicant’s share in the first property was CYP 8,872 and
in the second property CYP 10,072. Furthermore a residents’ tax
of 10% was added onto the interest. Moreover, in its opinion the
Commission stated that, as regards compensation for loss of use, it
had collected data from the Land Registry and Surveys Department on
the 1973-74 purchase prices for comparable properties in Famagusta.
- In
the alternative, the Commission noted that it would be entitled to
take a decision to restore the property in question which would take
effect after the settlement of the Cyprus problem and that this
implied that, as from the date of the announced decision of the
Commission on restitution, no construction would be permitted on the
immovable property that would be restored after the settlement of the
Cyprus problem. Such property could not be improved, purchased or
sold. As a last alternative, the Commission proposed to offer the
applicant a Turkish-Cypriot property located in the south of the
buffer zone of equal value to her property. The Government considered
that the proposals made by the Commission concerning the applicant’s
property claims constituted an effective redress in line with the
principal judgment.
- With
regard to the new remedy, the Government also noted that the new Law
provided for restitution of properties within the ambit of
Article 159 (1) (b) of the “TRNC Constitution”, in
addition to the means of redress provided by the previous law. The
Law provided three alternative solutions, restitution of the
immovable property being one of them. In particular, under the above
section, restitution was possible where firstly, the ownership or use
of the property has not been transferred to any real person or to any
legal person other than the State; secondly, the restitution of such
property, having regard to the location and the physical condition of
the property, shall not endanger national security and public order;
thirdly, such property is not taken for public interest reasons; and
finally, that the immovable property is outside the military areas or
military installations. In cases where restitution could not be
provided, the decision for restitution could be implemented after the
settlement of the Cyprus issue. The Law set out certain rules in this
respect. Furthermore, should restitution not be possible under the
terms of the Law, neither immediately nor after the settlement of the
Cyprus issue, other forms of redress such as exchange or compensation
may be offered to an applicant.
- Furthermore,
the Turkish Government submitted that under “Law no. 67/2005”
compensation was available for non-pecuniary damages in respect of
the loss of enjoyment of the right to respect for home, for loss of
use and further, in respect of movable properties which belonged to
applicants before 13 February 1975 and had to be abandoned for
reasons beyond their control.
- Finally,
in accordance with “Law no. 67/2005”, any person,
directly or indirectly, deriving any benefit from the immovable
properties on which rights were claimed by those who had to move from
northern Cyprus in 1974, could not be appointed as members of the
Commission. The Government submitted that the Commission had two
“international” members and, further, that the
Turkish-Cypriot members of the Commission had provided signed and
sworn statements with regard to a possible conflict of interest.
(c) The Cypriot Government
- The
Cypriot Government made lengthy observations similar to those of the
applicant, contesting the lawfulness of the proposed remedy in view
of the Court’s jurisprudence and, in the alternative, the
effectiveness and adequacy of the remedy. They raised certain
additional points with regard to the latter. Amongst other things,
they pointed out that the effect of Article 159 (1) (b) of the
“TRNC” Constitution was to vest in the “TRNC”
by amending entries in the Land Registry Records, the title to all
immovable property referred to in that part of the article. And 159
(2) permitted the transfer of this property to “physical and
legal” persons. Such purported transfers had been and were
still being carried out by the illegal sale of Greek-Cypriot property
by Turkish/“TRNC” citizens to tourists and other foreign
nationals.
- The
Cypriot Government stressed that the Law permitted only a very
limited range of claims to be brought before the applicant and
restricted the scope of applicants that could have recourse to it;
the criteria according to which compensation was to be awarded were
unfairly and unduly limited and were not based on the principles set
out by the Court in its judgments in the case of Loizidou
v. Turkey (Article 50) (judgment of 29 July 1998, Reports
1998 I) nor on international valuation standards. In this
connection, they argued that there were inadequacies and ambiguities
in the calculation of compensation, the manner of valuation of
properties and concerning the exchange of properties. The provisions
of the Law ignored the practical reality of the position of
Greek-Cypriot property owners who had to flee in 1974 and did not
have the time or the chance to collect all their documents.
- They
noted that the Law expressly prohibited the pursuit of rights of
ownership upon receipt of exchange/compensation under no condition
and that it treated Greek-Cypriot owners less favourably than “TRNC”
citizens on the basis of Article 36 of the “TRNC Constitution”,
contrary to Article 14 of the Convention, whilst Greek Cypriots
living in enclaves in the Karpas peninsula and the Kyrenia district
who had to abandon their property after 13 February 1975, were
excluded from lodging claims.
- The
Cypriot Government challenged the impartiality of the Commission. In
this respect, they noted, inter alia, the restrictions on the
appointment of the members of the Commission, its composition and the
fact that close relatives of some of the members of the Commission
lived in houses owned by or built on property owned by Greek
Cypriots. In this connection, they also alleged that three members of
the “High Administrative Court” of the “TRNC”,
to which appeals could be lodged against decisions of the Commission
were benefiting from Greek-Cypriot owned properties. The Cypriot
Government provided documentation that included, inter alia,
details from “TRNC” telephone directories, title
deeds, maps and photographs in support of their arguments.
Furthermore, they noted that any independent or impartial influence
of the two foreign members of the Commission would be negated by the
fact that the Commission reached its decision by a simple majority of
a quorum of two-thirds of the total number of members.
- Finally,
they questioned the Turkish Government’s observations
concerning the applications pending or dealt with by the Commission,
in particular those in which it is claimed that restitution had been
allegedly offered. The Cypriot Government claims that the Commission
failed to award the applicants in these applications any damages for
loss of use of their properties.
2. The Court’s assessment
- The
Court recalls that in its principal judgment it held that there had
been a continuing violation of the applicant’s rights
guaranteed by Articles 8 of the Convention and Article 1 of
Protocol No. 1 by reason of the complete denial of the rights of the
applicant with respect to her home and the peaceful enjoyment of her
property in northern Cyprus (§§ 22 and 32 of the principal
judgment). It further held that the applicant was still the legal
owner in part of two properties situated in the area of Famagusta (§
28 of the principal judgment) and that its finding of a violation of
Article 1 of Protocol No. 1 was based on the fact that, as a
consequence of being continuously denied access to her land, she had
effectively lost control as well as the possibility to use and enjoy
her property (§ 32 of the principal judgment).
-
The Court welcomes the steps taken by the Government in an effort to
provide redress for the violations of the applicant’s
Convention rights as well in respect of all similar applications
pending before it. The Court notes that the new compensation and
restitution mechanism, in principle, has taken care of the
requirements of the decision of the Court on admissibility of 14
March 2005 and the judgment on the merits of 22 December 2005. The
Court points out that the parties failed to reach an agreement on the
issue of just satisfaction where, like in the case of Broniowski
v. Poland (friendly settlement and just satisfaction) ([GC], no.
31443/96, ECHR 2005 …), it would have been possible
for the Court to address all the relevant issues of the effectiveness
of this remedy in detail. The Court cannot accept the Government’s
argument that the applicant should now be required at this stage of
the proceedings where the Court has already decided on the merits to
apply to the new Commission in order to seek reparation for her
damages (Doğan and Others v. Turkey (just
satisfaction), nos. 8803-8811/02, 8813/02 and 8815 8819/02,
§ 50, 13 July 2006).
- The
Court will therefore proceed to determine the compensation the
applicant is entitled to in respect of losses emanating from
the denial of access and loss of control, use, and enjoyment of her
property between 22 January 1990, the date of Turkey’s
acceptance of the compulsory jurisdiction of the Court, and the
present time (Loizidou (Article 50), judgment of 29 July
1998, cited above, p. 1817, § 31).
- It
is true that the applicant’s claim goes back to 28 January
1987. However, the Court notes that the relevant date for the
determination of the Court’s jurisdiction commenced on 22
January 1990 and refers to its findings on the jurisdiction and the
temporal competence of the Commission and the Court in the case of
Loizidou ((preliminary objections), judgment of 23 March 1995,
Series A no. 310, p. 33, § 102, and (merits) judgment of 18
December 1996, cited above, p. 2227, § 32).
- The
Court observes that there is a considerable difference between the
applicant’s claims and the amount offered by the Government.
Furthermore, it notes that the valuations furnished by the parties
involve a significant degree of speculation due to the absence of
real data with which to make a comparison and make insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international
(Loizidou (Article 50), cited above, p. 1817, § 31).
- Accordingly,
in assessing the pecuniary damage sustained by the applicant, the
Court has, as far as appropriate, considered the estimates provided
by the parties. Furthermore, the Court has taken into account the
uncertainties, inherent in any attempt to quantify the real losses
incurred by the applicant (see Loizidou (preliminary
objections), judgment of 23 March 1995, cited above, p. 33, §
102, and (merits), judgment of 18 December 1996, cited above, p.
2227, § 32). It has also noted that the applicant has adopted
lower percentage increases than Mrs Loizidou concerning the market
value of the property and with regard to one of the properties
concerning the rent but has made an additional claim in the form of
annual compound interest in respect of the loss because of the delay
in the payment of the sums due. In addition, the Court has taken note
of the estimates put forward by the Turkish Government and the fact
that, in its opinion, the Commission adopted the valuation method
used by the applicant in assessing the annual income the properties
would have yielded.
- Having
regard to the above considerations, and in the absence of an
agreement between the parties, the Court, making its assessment on an
equitable basis and formally in accordance with
the Commission’s proposal, awards the applicant EUR 800,000
under this head.
B. Non-pecuniary damage
1. The parties’ submissions
(a) The applicant
- The
applicant claimed CYP 180,000 in respect of non-pecuniary damage. In
particular, she firstly claimed CYP 45,000 for the anguish and
frustration she had suffered on account of the continuing violation
of her property rights under Article 1 of Protocol No. 1 from January
1987 until the end of 2006. The applicant stated that this sum was
calculated on the basis of the sum awarded by the Court in the
Loizidou case (Article 50), judgment of 28 July 1998, cited
above) by way of compensation for non-pecuniary damage, taking into
account, however, that the period of time for which the award was
claimed in the instant case, was longer than that claimed in the
Loizidou case. Further, she claimed CYP 135,000 for the
distress and suffering resulting from the denial of her home and in
view of the deliberate policy of the Government, who through the use
of, inter alia, their army were holding the fenced-up city of
Famagusta hostage to their political wishes. She considered this to
be more serious than the violation of her property rights under
Article 1 of Protocol No. 1.
- Lastly,
the applicant considered that the Government should pay her the
symbolic amount of CYP 1 per hour, that is, CYP 24 per day from
21 June 2006 until the restoration of her rights for the purpose
of encouraging the respondent Government to abide by the Court’s
judgment and to ensure that the applicant would not be penalised for
the lack of restoration of her rights. The applicant argued that she
had come up with this amount on an equitable basis and taking into
account the unnecessary continuation of the violation and the
consequent detrimental effect on her as well as the benefit that the
respondent Government was deriving from the adjournment of all
similar cases.
(b) The Government
- The
Government noted that the Commission in its valuation report had
found that in the absence of observations by the applicant it was not
in a position to make an assessment in respect of non-pecuniary
damage.
(c) The Cypriot Government
- The
Cypriot Government did not express an opinion on the matter.
2. The Court’s assessment
- The
Court is of the opinion that an award should be made under this head
in respect of the anguish and feelings of helplessness and
frustration which the applicant must have experienced over the years
in not being able to use her property as she saw fit and to enjoy her
home. Making an equitable assessment, the Court awards the applicant
EUR 50,000 under this head.
C. Costs and expenses
1. The parties’ submissions
(a) The applicant
- The
applicant, who had submitted bills of costs
containing an itemised breakdown of the work, claimed CYP 26,576.55,
plus value-added tax, for costs and expenses incurred following the
adoption of the “principal judgment”. Her claim was
composed of the following items:
(a) CYP
7,250, for the fees of a Queen’s Counsel, Mr I. Brownlie,
CBE, QC, which included instructions, comments and advice on matters
of international law for the preparation of the applicant’s
additional observations;
(b) CYP
17,200, plus value-added tax, for the fees of the applicant’s
lawyer covering advice given on the question of referral to the Grand
Chamber, the preparation of the observations on just satisfaction and
meetings. The above amounts were claimed in respect of a total of
127 hours work on the part of her representative;
(c) CYP
2,126.55, plus value-added tax, for the fees of the updated valuation
reports, which amounted to CYP 100, and out of pocket expenses
incurred from December 2005 until May 2006. The latter included
mainly communication costs (faxes, telephone bills, mail) as well as
the air fare, accommodation and expenses for a trip by the
applicant’s lawyer to Strasbourg from 5 until 6 December 2005.
(b) The Government
- The
Government did not express an opinion on the matter.
(c) The Cypriot Government
- The
Cypriot Government did not express an opinion on the matter.
2. The Court’s assessment
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see, for example,
Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- The
Court notes that it is clear from the length and detail of the
pleadings submitted by the applicant that a considerable amount of
work was carried out on her behalf. These pleadings included the
applicant’s comments concerning the new remedy proposed by the
Government, a matter which did not form part of the parties’
previous submissions before the Chamber. The costs associated with
the preparation of these pleadings and with producing updated
valuation reports in view of the continuing nature of the violations
at stake were essential for enabling the Court to reach its decision
regarding the issue of just satisfaction.
- Nonetheless,
the Court considers that the sum total claimed in fees is excessive.
In this connection, it notes that in view of the fact that the case
was not referred to the Grand Chamber nothing should be accorded to
the applicant in this respect. It further notes that the applicant
has not shown that the costs associated with her representative’s
journey to Strasbourg in December 2005 were incurred in connection
with the case.
- Accordingly,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of
EUR 35,000 to cover all the applicant’s costs and
expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention,
the following comprehensive sums, to be converted into Cypriot pounds
at the rate applicable at the date of settlement:
(i) EUR
800,000 (eight hundred thousand euros) in respect of pecuniary
damage;
(ii) EUR
50,000 (fifty thousand euros) in respect of non-pecuniary damage;
(iii) EUR
35,000 (thirty-five thousand euros) in respect of costs and expenses;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall
be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period
plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 7
December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
Vincent Berger Georg
Ress
Registrar President
