BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF RAMON v. TURKEY
(Application
no. 29092/95)
JUDGMENT
(merits)
STRASBOURG
22
September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ramon v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Işıl Karakaş, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29092/95) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mr Dinos Ramon (“the
applicant”), on 4 September 1995.
- The
applicant was represented by Mr A. Demetriades, a lawyer practising
in Nicosia. The Turkish Government (“the Government”)
were represented by their Agent, Mr Z.M. Necatigil.
- The
applicant alleged that the Turkish occupation of the northern part of
Cyprus had deprived him of his home and properties.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
a decision of 24 August 1999 the Court declared the application
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
- The
applicant was born in 1937 and lives in Nicosia.
- Until
15 August 1974 the applicant, a chiropractor, had been living with
his family in a flat he was renting at 5 Iras street in Famagusta
(northern Cyprus). His surgery was located at 36 Socratous street in
Famagusta.
- On
1 August 1972 the applicant entered into a contract with a public
body, the Boghaz Improvement Board, for the purchase of a plot of
land in the District of Famagusta. He produced a copy of the relevant
contract, in which the plot of land in question was described as
“part of plot no. 343/1 according to the map attached”.
The plot was registered under sheet/plan 15/28 E.1, Block E,
Boghaz Village, Famagusta, Ayios Spyridon locality and had a surface
of 8,947 square metres. The applicant also produced a copy of a
letter he had addressed to the President of the Boghaz Improvement
Board on 22 April 1974, in which it was stated that he had paid the
agreed price in full. However, no title deed had been issued in the
applicant's name before 15 August 1974, as the procedure for the
parcelling of plot no. 343/1 had not been completed. On 6 December
1991 the Republic of Cyprus issued, in the applicant's name, an
affirmation of ownership of Turkish-occupied land. A copy of this
document was attached to the present application.
- The
applicant claimed that by August 1974 he had nearly finished the
construction of a clinic/health centre on the plot of land described
in paragraph 9 above. This clinic had 32 rooms with private
balconies, a restaurant, a lecture room, a library and a swimming
pool. However, on 15 August 1974 the applicant had been forced
to flee Famagusta as the Turkish troops were advancing. Since then he
had been unable to gain access to or use his home, surgery and plot
of land. The applicant discovered, through a newspaper article
published on 13 August 1989 and an advertising brochure, that persons
unknown to him had taken over the plot of land and completed the
construction of the clinic/health centre and transformed it into a
hotel.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility ratione
loci and ratione temporis, non-exhaustion of domestic
remedies and lack of victim status. The Court observes that these
objections are identical to those raised in the case of Alexandrou
v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009),
and should be dismissed for the same reasons.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that since July 1974, Turkey had prevented him
from exercising his right to the peaceful enjoyment of his
possessions.
He
invoked Article 1 Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government submitted that the property claimed by the applicant was
situated outside the jurisdiction of Turkey and that the latter had
no knowledge about it. In any event, the applicant had not been
deprived of his possessions because of the Turkish intervention of
1974. The property at issue was, by the applicant's own admission, in
course of construction. At the material time, the applicant was
neither living there nor was he using it as a clinic. He never became
the legal owner of the property as an agreement for sale could not
create ownership. In addition, there was no evidence that all the
conditions of the said agreement had been fulfilled. No title deed
had been issued in the applicant's name and the plot of land and the
construction thereon remained in the name of the Boghaz Improvement
Board. They had subsequently been expropriated by the authorities of
the “Turkish Republic of Northern Cyprus” (the “TRNC”).
Moreover, the applicant had not applied through the proper channels
to visit his alleged property in northern Cyprus.
- Finally,
the alleged interference with the applicant's property rights could
not be seen in isolation from the general political situation in
Cyprus and had in any event been justified in the general interest.
2. The applicant
- The
applicant relied on the principles laid down by the Court in the case
of Loizidou v. Turkey ((merits), Reports of Judgments
and Decisions 1996-VI, 18 December 1996). He observed that
an aggravating factor in his case was that his property had been used
by unknown persons as a hotel under the control of the Turkish army.
B. The third-party intervener
- The
Government of Cyprus observed that its Department of Lands and
Surveys had provided with certificates of affirmation persons who did
not have title deeds in their possession but whose title had been
entered in District Land Offices registers in the Turkish-occupied
area. These certificates were prima facie evidence of their
right of property. The “TRNC” authorities were in
possession of all the records of the Department of Lands and Surveys
relating to the title to properties. It was therefore the duty of the
respondent Government to produce them. The applicant did not have any
title deed because the registration of his title had not been
completed at the time of the Turkish invasion; however, he was in
peaceful possession of the property and had a lawful and legitimate
expectation that the transfer of his title would be completed.
- The
Government of Cyprus further noted that the present case was similar
to that of Loizidou v. Turkey ((merits), cited above), where
the Court had found that the loss of control of property by displaced
persons arose as a consequence of the occupation of the northern part
of Cyprus by Turkish troops and the establishment of the “TRNC”,
and that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
C. The Court's assessment
- The
Court first notes that the documents submitted by the applicant (see
paragraph 9 above) provide prima facie evidence that he had
concluded a sale agreement and paid the price for acquiring the
ownership of the plot of land on which he was constructing a clinic.
He had, therefore, a legitimate expectation that a title deed would
be issued in his name, once the administrative formalities relating
to the registration of his purchase had been completed. As the
respondent Government failed to produce convincing evidence in
rebuttal, the Court considers that the applicant had a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court recalls that in the aforementioned Loizidou case
((merits), cited above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact
that the applicant has been refused access to the land since 1974,
she has effectively lost all control over, as well as all
possibilities to use and enjoy, her property. The continuous denial
of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference
cannot, in the exceptional circumstances of the present case to which
the applicant and the Cypriot Government have referred, be regarded
as either a deprivation of property or a control of use within the
meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first
sentence of that provision as an interference with the peaceful
enjoyment of possessions. In this respect the Court observes that
hindrance can amount to a violation of the Convention just like a
legal impediment.
64. Apart from a passing reference to the
doctrine of necessity as a justification for the acts of the 'TRNC'
and to the fact that property rights were the subject of
intercommunal talks, the Turkish Government have not sought to make
submissions justifying the above interference with the applicant's
property rights which is imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
- In
the case of Cyprus v. Turkey ([GC], no. 25781/94,
ECHR 2001–IV) the Court confirmed the above conclusions (§§
187 and 189):
“187. The Court is persuaded that both
its reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation
of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus are being denied
access to and control, use and enjoyment of their property as well as
any compensation for the interference with their property rights.”
- The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus v.
Turkey cases (op. cit.; see also Demades v. Turkey
(merits), no. 16219/90, § 46, 31 July 2003).
- Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1 to the Convention by virtue of the fact that the applicant was
denied access to and control, use and enjoyment of his properties as
well as any compensation for the interference with his property
rights.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant submitted that in
1974 he had had his home in Famagusta. As he had been unable to
return there, he had been the victim of a violation of Article 8
of the Convention.
This provision reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government disputed this claim, observing that the applicant had not
established his “home” or residence on his alleged
properties.
- The
applicant submitted that part of the clinic which he was constructing
contained his home. Furthermore, at the time of the Turkish invasion
he was residing in the flat he had rented at 5 Iras Street in
Famagusta (see paragraph 8 above). Because of the advancing Turkish
troops, he had to abandon, overnight together with his wife and two
daughters, both his temporary and future home.
- The
Government of Cyprus submitted that where the applicant's properties
constituted the person's home, there was a violation of Article 8
of the Convention.
- The
Court notes that at the time of the Turkish invasion the applicant
was not residing in the clinic which was being constructed on the
plot of land described in paragraph 9 above. Moreover, he was not the
owner of the flat located at 5 Iras Street, where he was allegedly
living until August 1974. Under these circumstances, the Court is not
convinced that a separate issue may arise under Article 8 of the
Convention or that there had been a continuing violation of the
applicant's rights guaranteed by this provision. It therefore
considers that it is not necessary to examine the present complaint.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
- In
his just satisfaction claims of November 1999, the applicant
requested 790,528 Cypriot pounds (CYP –
approximately 1,350,696 euros (EUR)) for pecuniary damage. He relied
on an expert's report assessing the value of his losses which
included the loss of annual rent collected or expected to be
collected from renting out his clinic in Famagusta, plus interest
from the date on which such rents were due until the day of payment.
The rent claimed was for the period dating back to January 1987, when
the respondent Government accepted the right of individual petition,
until January 2000. The applicant did not claim compensation for any
purported expropriation since he was still the legal owner of the
property. The evaluation report contained a description of the Boghaz
village, of its development perspectives and of the applicant's
property.
- The
expert appointed by the applicant observed that in August 1974 the
clinic was in the final stage of completion and that the building
materials had been purchased by the owner and were in situ.
Therefore, the valuation was based on the assumption that the
building was completed. The report calculated the annual rent
obtainable from the applicant's property in 1974. As the clinic was
not yet operating, it used a comparative method based on the evidence
available for an alternative use of the premises, namely as a three
star hotel, taking into consideration the attractiveness of a
chiropractic centre.
- According
to the expert, a hotel similar to the applicant's property could have
obtained an average sum of CYP 45 (approximately EUR 76) per room per
month. He then deducted 20% from this amount in order to take into
account the expenses for furniture and equipment. As the applicant's
clinic had 32 rooms, its total rental value in August 1974 was CYP
13,824 (approximately EUR 23,619). The expert further took into
account the trends of rent increase on the basis of: (a) the nature
of the area of property; (b) the trends for the period 1970-1974 in
similar areas; (c) the trends in the unoccupied areas of Cyprus from
1974 onwards. This last trend was based on the Consumer Price Index
for rents and houses issued by the Department of Statistics and
Research of the Government of Cyprus. Moreover, compound interest for
delayed payment was applied at a rate of 8% per annum.
- On
24 January 2008, following a request from the Court for an update on
the developments of the case, the applicant submitted updated claims
for just satisfaction, which were meant to cover the loss of the use
of the property from 1 January 1987 to 31 December 2007. He produced
a revised valuation report, which, on the basis of the criteria
adopted in the previous report, concluded that the whole sum due for
the loss of use was CYP 1,159,708.36 plus CYP 1,172,560.43 for
interest. The total sum claimed under this head was thus CYP
2,332,269 (approximately EUR 3,984,914).
- In
his just satisfaction claims of November 1999, the applicant further
claimed CYP 120,000 (approximately EUR 205,032) in respect of
non-pecuniary damage. In particular, he claimed CYP 30,000
(approximately EUR 51,258) for the anguish and frustration he
suffered on account of the continuing violation of his property
rights. He stated that this sum had been calculated on the basis of
the sum awarded by the Court in the Loizidou case ((just
satisfaction), Reports 1998-IV, 28 July 1998), taking
into account, however, that the period of time for which the damage
was claimed in the instant case was longer. The applicant also
claimed CYP 90,000 (approximately EUR 153,774) for the
distress and suffering he had been subjected to due to the denial of
his right to respect for his home.
- Finally,
in his updated claims for just satisfaction of 24 January 2008, the
applicant requested the additional sum of EUR 50,000 for
non-pecuniary damage.
(b) The Government
36. The
Government filed comments on the applicant's updated claims for just
satisfaction on 30 June 2008 and 15 October 2008. They pointed out
that the present application was part of a cluster of similar cases
raising a number of problematic issues and maintained that the claims
for just satisfaction were not ready for examination. The Government
had in fact encountered serious problems in identifying the
properties and their present owners. The information provided by the
applicants in this regard was not based on reliable evidence.
Moreover, owing to the lapse of time since the lodging of the
applications, new situations might have arisen: the properties could
have been transferred, donated or inherited within the legal system
of southern Cyprus. These facts would not have been known to the
respondent Government and could be certified only by the
Greek-Cypriot authorities, who, since 1974, had reconstructed the
registers and records of all properties in northern Cyprus.
Applicants should be required to provide search certificates issued
by the Department of Lands and Surveys of the Republic of Cyprus. In
cases where the original applicant had passed away or
the property had changed hands, questions might arise as to whether
the new owners had a legal interest in the property and whether they
were entitled to pecuniary and/or non-pecuniary damages.
- The
Government submitted that as an annual increase of the value of the
properties had been applied, it would be unfair to add compound
interest for delayed payment, and that Turkey had recognised the
jurisdiction of the Court on 21 January 1990, and not in January
1987. In any event, the alleged 1974 market value of the properties
was exorbitant, highly excessive and speculative; it was not based on
any real data with which to make a comparison and made insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international. The
report submitted by the applicant had instead proceeded on the
assumption that the property market would have continued to flourish
with sustained growth during the whole period under consideration.
- The
Government produced a valuation report prepared by the
Turkish-Cypriot authorities, which they considered to be based on a
“realistic assessment of the 1974 market values, having regard
to the relevant land records and comparative sales in the areas where
the properties [were] situated”. This report contained two
proposals, assessing, respectively, the sum due for the loss of use
of the properties and their present value. The second proposal was
made in order to give the applicant the option to sell the property
to the State, thereby relinquishing title to and claims in respect of
it.
- The
report prepared by the Turkish-Cypriot authorities specified that the
immovable properties referred to in the application were a forest
land; they could not, therefore, form the object of restitution, but
could give entitlement to financial compensation, to be calculated on
the basis of the loss of income (by applying a 5% rent on the 1974
market values) and increase in value of the properties between 1974
and the date of payment. However, as a forest land was public
property, it had not been possible to estimate the value of the
properties at issue. Upon fulfilment of certain
conditions, the Immovable Property Commission could have offered the
applicant exchange of his properties with Turkish-Cypriot properties
located in the south of the island.
40. Finally,
the Government did not comment on the applicant's submissions under
the head of non-pecuniary damage.
2. The third party intervener
- The
Government of Cyprus fully supported the applicant's updated claims
for just satisfaction.
3. The Court's assessment
- The
Court first notes that the Government's submission that doubts might
arise as to the applicant's title of ownership over the properties at
issue (see paragraph 36 above) is, in substance, an objection of
incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. Such an objection should have been
raised before the application was declared admissible or, at the
latest, in the context of the parties' observations on the merits. In
any event, the Court cannot but confirm its finding that the
applicant had a “possession” over the properties in
Boghaz within the meaning of Article 1 of Protocol No. 1 (see
paragraph 19 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicant of the 1974 market value of his properties is
reasonable. The question must accordingly be reserved and the
subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
his just satisfaction claims of November 1999, relying on bills from
his representative, the applicant sought CYP 2,376 (approximately EUR
4,059) for the costs and expenses incurred before the Court. This sum
included CYP 600 (approximately EUR 1,025) for the costs of the
expert report assessing the value of his properties. In his written
observations of 15 January 2004, the applicant claimed
additional legal fees for CYP 2,645 (approximately EUR 4,519). In his
updated claims for just satisfaction of 24 January 2008, he
submitted additional bills of costs for the new valuation report and
for legal fees amounting to EUR 392.15 and EUR 2,955.5
respectively. The total sum sought for cost and expenses was
thus approximately EUR 11,925.
- The
Government did not comment on this point.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the applicant.
FOR THESE REASONS, THE COURT
- Dismisses by six votes to one the Government's
preliminary objections;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 8 of the
Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Karakaş
is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE KARAKAŞ
Unlike
the majority, I consider that the objection of non-exhaustion of
domestic remedies raised by the Government should not have been
rejected. Consequently, I cannot agree with the finding of a
violation of Article 1 of Protocol No. 1 of the Convention, for the
same reasons as those mentioned in my dissenting opinion in the case
of Alexandrou v. Turkey (no. 16162/90, 20 January 2009).
