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FOURTH
SECTION
CASE OF ECONOMOU v. TURKEY
(Application
no. 18405/91)
JUDGMENT
STRASBOURG
27
January 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 Economou 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 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18405/91) 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 Antonios Economou (“the
applicant”), on 31 May 1991.
- The
applicant was represented by Mr L. Clerides, 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 1943 and lives in Nicosia.
- The
applicant first stated that he was the owner of a fully furnished
house in the District of Kyrenia. However, in his observations of 27
October 1999 he listed his properties as follows:
(a) Ayios
Amvrosios, registration no. 13094, plot no. 33/2, sheet/plan
XIII/31.E.1, field with various trees, area: 15,340 sq. m;
(b) Ayios
Amvrosios, registration no. 8648, plot no. 512, sheet/plan
XIII/27.E.1&E.2 and XIII/28.W.1&W.2, inaccessible hilly
field, area: 19,735 sq. m;
(c) Ayios
Amvrosios, registration no. 4923, plot no. 135, sheet/plan
XIII/22.W.1, inaccessible field with olive trees, area: 3,345 sq. m;
(d) Ayios
Amvrosios, registration no. 8277, plot no. 343, sheet/plan
XII/27.E.1, field with small former farmhouse and stables, area: 370
sq. m;
(e) Ayios
Amvrosios, registration no. 13131, plot nos. 400 and 401/1,
sheet/plan XIII/27.E.1, inaccessible field with nine olive trees,
area: 1,254 sq. m.
- An
expert appointed by the applicant conducted researches in the
Famagusta lands registers and obtained the above registration numbers
and references. In support of his claim of ownership, the applicant
submitted a survey map on which his properties were marked in yellow.
- Moreover,
in an affidavit of 22 October 1999 the applicant stated that from the
time he was born he had lived with his parents in their home in Ayios
Amvrosios. When he got married in July 1973 he moved to his wife's
house in Aglandja, a village which had never been occupied by Turkish
military forces. After his marriage, the applicant used to spend
weekends and holidays in Ayios Amvrosios.
- As
a result of the 1974 Turkish military intervention the applicant had
been deprived of his property rights, his properties being located in
the area which was under the occupation and overall control of the
Turkish military authorities. The latter had prevented him from
having access to and using his property and his parents' house
located in Ayios Amvrosios. Moreover, the applicant stated that his
house had been occupied by officers and/or other members of the
Turkish military forces.
- On
9 December 1990 the applicant made an attempt to return to his
property in Ayios Amvrosios by participating in a convoy of cars of
fellow refugees from the same district wishing to return home during
a peaceful march towards their villages.
- The
applicant and his fellow refugees, who had informed the Commander of
the United Nations (UN) forces in Cyprus of their intention, stopped
at the checkpoint in the “buffer zone”, on the main road
linking Nicosia with Ayios Amvrosios and Kyrenia. There, they asked
the UN officer on duty to be allowed to return to their homes,
property and villages. They requested the officer to transmit to the
Turkish military authorities their demand to return to their homes.
The officer announced to them that the Turkish military authorities
had refused their request.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government raised preliminary objections of inadmissibility ratione
loci and ratione temporis, non-exhaustion of domestic
remedies and lack of victim status. The Court observes that these
objections were identical to those raised in the case of Alexandrou
v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009),
and should be dismissed for the same reasons.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that since 1974, Turkey had prevented him from
exercising his right to the peaceful enjoyment of his possessions.
He
invoked Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government submitted that the 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 produced
any title deed supporting his claim to ownership and had not applied
through the proper channels to visit his alleged properties. He had
not attempted to enter the northern part of Cyprus at an approved
crossing point, and had not been prevented from doing so by Turkish
or/and Turkish-Cypriot forces.
- Finally,
the alleged interference with the applicant's property rights could
not be seen in isolation from the general political situation on the
island of Cyprus and had been in any event justified in the general
interest.
2. The applicant
- The
applicant relied on the principles laid down by the Court in the
Loizidou v. Turkey judgment ((merits), 18 December
1996, Reports of Judgments and Decisions 1996-VI), and
recalled that on 9 December 1990 he had been prevented from returning
to his property.
B. The third-party intervener
- The
Government of Cyprus observed that the “TRNC” authorities
were in possession of all the records of the Department of Lands and
Surveys relating to the title to properties in northern Cyprus. It
was therefore the duty of the respondent Government to produce them.
- The
Government of Cyprus further noted that the present case was similar
to that of Loizidou ((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 a
title of ownership over the properties at issue. 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 (cited above) 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 and continues to be a violation of
Article 1 of Protocol No. 1 by virtue of the fact that the applicant
is denied access to and control, use and enjoyment of his property 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 the District of Kyrenia. Being unable to
return there, he was 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
claimed ownership only of “plots of land”, which could
not constitute a “home”. In any event, the applicant's
inability to return to northern Cyprus had been an inevitable
consequence of the political state of affairs on the island and of
the existence of the UN buffer zone. The alleged interference with
his rights under Article 8 had therefore been necessary in the
interests of national security, public safety, for the prevention of
disorder and for the protection of the rights and freedoms of others.
- The
Government of Cyprus submitted that where the applicant's properties
constituted the person's home, there was a violation of Article 8
of the Convention.
- The
Court notes that in his observations of 27 October 1999 the applicant
has indicated that his claims for ownership only concerned plots of
lands. In this respect, it is to be recalled that the notion of
"home" in Article 8 does not comprise property on which it
is planned to build a house and that that term cannot be interpreted
to cover an area of a State where one has grown up and where the
family has its roots but where one no longer lives (see Loizidou
(merits), cited above, § 66). Moreover, the applicant has
not insisted in his claims under Article 8 of the Convention in the
observations deposited after the admissibility of the application.
- Under
these circumstances, the Court considers that it is not necessary to
examine this complaint.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against him in the
enjoyment of his rights under Article 1 of Protocol No. 1. He alleged
that this discrimination had been based on his national origin and
religious beliefs.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government disputed this claim.
- The
Court recalls that in the above-mentioned Alexandrou case
(cited above, §§ 38-39) it has found that it was not
necessary to carry out a separate examination 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 also, mutatis
mutandis, Eugenia Michaelidou Ltd and Michael Tymvios v.
Turkey, no. 16163/90, §§ 37-38, 31 July 2003).
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that he had not had at his disposal any effective
remedy by which to obtain redress for the above-mentioned grievances.
He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed this claim, observing that the “effective
remedy” mentioned in Article 13 of the Convention necessarily
referred to a remedy in the domestic law of the “TRNC”.
Turkey could neither interfere with the judicial system of the “TRNC”
nor provide remedies to supplement those existing under domestic law.
In the light of the above, the Government submitted that no issue
under Article 13 could be raised by the present application.
- The
Court notes that the applicant submitted no pleadings on this point,
including on the issue of applicability. It considers therefore that
it is not necessary to examine this complaint (see Demades
(merits), cited above, § 48).
VI. 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 27 October 1999, the applicant
requested 84,000 Cypriot pounds (CYP –
approximately 143,522 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 properties, plus interest from the date on which such
rents were due until the day of payment. The rent claimed was for the
period dating back to January 1987, when the respondent Government
accepted the right of individual petition, until October 1999. The
applicant did not claim compensation for any purported expropriation
since he was still the legal owner of the properties. The valuation
report contained a description of Ayios Amvrosios village.
- The
starting point of the valuation report was the rental value of each
property in 1974, calculated as a percentage (between 1.75% and 6%)
of the market value of each plot of land. The expert took into
account the use and the building potentialities of each property.
According to the expert, the 1974 market value of the properties
described under paragraph 8 above was CYP 23,000 (approximately EUR
39,297), CYP 6,000 (approximately EUR 10,251), CYP 3,000
(approximately EUR 5,125), CYP 3,000 and CYP 300 (approximately EUR
512) respectively. The rent which could have been obtained in the
same year was CYP 1,035, CYP 180, CYP 90, CYP 180 and CYP 5
respectively, thus an overall sum of CYP 1,490 (approximately
EUR 2,545). This sum was subsequently adjusted upwards according
to an annual rental increase of 5%, in order to arrive at the annual
rent receivable in 1987 (CYP 2,810) and in 1999 (CYP 5,046).
Compound interest for delayed payment was applied at a rate of 8% per
annum.
- On
26 January 2008, following a request from the Court for an update on
developments in the case, the applicant submitted updated claims for
just satisfaction, which were meant to cover the period of loss of
use of the properties from 2000 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 sum due for the loss of
use for this last period was CYP 126,000 (approximately EUR
215,283) including statutory interest. The total sum claimed by the
applicant for pecuniary damage thus amounted to CYP 210,000
(approximately EUR 358,806).
- In
his just satisfaction claims of 27 October 1999, the applicant
further claimed CYP 50,000 (approximately EUR 85,430) in respect
of non-pecuniary damage. He stated that this sum had been calculated
on the basis of the sum awarded by the Court in the Loizidou case
((just satisfaction), 28 July 1998, Reports 1998-IV),
taking into account, however, that the period of time for which the
damage was claimed in the instant case was longer and that there had
also been a violation of Article 14 of the Convention.
- Finally,
in his updated claims for just satisfaction of 26 January 2008, the
applicant requested an additional CYP 31,000 (approximately
EUR 52,966) in respect of non-pecuniary damage.
(b) The Government
44. 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.
Moreover, 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 damage.
- The
Government further noted that some applicants had shared properties
and that it had not been proved that their co-owners had agreed to
the partition of the possessions. Nor, when claiming damages based on
the assumption that the properties had been rented after 1974, had
the applicants shown that the rights of the said co-owners under
domestic law had been respected.
- The
Government further submitted that as an annual increase of the value
of the properties had been applied, it would be unfair to add
compound interest for delayed payment, and that Turkey had recognised
the jurisdiction of the Court on 21 January 1990, and not in January
1987. In any event, the alleged 1974 market value of the properties
was exorbitant, highly excessive and speculative; it was not based on
any real data with which to make a comparison and made insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international. The
report submitted by the 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 properties
to the State, thereby relinquishing title to and claims in respect of
them.
- The
report prepared by the Turkish-Cypriot authorities specified that it
would be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the properties
described in paragraph 8 (a), (b), (d) and (e) above. The other
immovable property referred to in the application was possessed by
refugees; it could not 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. Had the applicant applied to the Immovable Property
Commission, the latter would have offered CYP 24,838.15
(approximately EUR 42,438) to compensate the loss of use and
CYP 26,455.99 (approximately EUR 45,201) for the value of the
properties. According to an expert appointed by the “TRNC”
authorities, the 1974 open-market value of the properties described
in paragraph 8 above was CYP 4,323 (approximately EUR 7,386). Upon
fulfilment of certain conditions, the Immovable Property Commission
could also have offered the applicant an exchange of his properties
with Turkish-Cypriot properties located in the south of the island.
49. 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 44 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 fields in Ayios
Amvrosios within the meaning of Article 1 of Protocol No. 1 (see
paragraph 22 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 invasion. This failure renders it
difficult for the Court to assess whether the estimate furnished by
the applicant of the 1974 market value of his plots of land 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 27 October 1999, relying on bills
from his representative, the applicant sought CYP 1,825
(approximately EUR 3,118) for the costs and expenses incurred before
the Court. This sum included CYP 500 (approximately 854 EUR) for the
cost of the expert report assessing the value of his properties. In
his updated claims for just satisfaction of 26 January 2008, the
applicant submitted additional bills of costs for the new valuation
report and for legal fees amounting to CYP 1,000 (approximately
EUR 1,708). The total sum claimed for costs and expenses was
thus EUR 4,826.
- 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 Articles 8, 13 and 14
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 27 January 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 dissenting opinion of Judge
Karakaş is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE KARAKAŞ
(Translation)
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.
The
rule of exhaustion of domestic remedies is intended to give
Contracting States the opportunity to prevent or provide redress for
violations alleged against them before such allegations are referred
to the Court. That reflects the subsidiary nature of the Convention
system.
Faced
with the scale of the problem of deprivations of title to property
alleged by Greek Cypriots (approximately 1,400 applications of this
type lodged against Turkey), the Court, in the operative part of its
Xenides Arestis v. Turkey judgment of 22 December 2005,
required the respondent State to provide a remedy guaranteeing the
effective protection of the rights set forth in Article 8 of the
Convention and Article 1 of Protocol No. 1 in the context of all the
similar cases pending before it. The State has a legal obligation not
just to pay those concerned the sums awarded by way of just
satisfaction under Article 41 of the Convention, but also to select
the general or, if appropriate, individual measures to be adopted in
its domestic legal order to put an end to the violation found by the
Court and to redress so far as possible the effects. The Government
submitted that by enacting the Law on Compensation for Immovable
Properties (Law no. 67/2005) and setting up a Commission to deal with
compensation claims it had discharged that obligation (see also
Xenides Arestis v. Turkey (just satisfaction), no.
46347/99, § 37, 7 December 2006). It is that domestic
remedy which, in their submission, the applicant failed to exercise
in the present case.
The
exhaustion of domestic remedies is normally assessed at the
time when an application is lodged with the Court. However, there are
exceptions to the rule which may be justified by the
particular circumstances of each case (see Baumann v.
France, no. 33592/96, § 47, ECHR 2001-V (extracts)).
Examples
of such exceptions are to be found in the cases against Italy which
raised similar questions and in which the Court found that certain
specific facts justified departing from the general principle
(see Brusco v. Italy, (dec.) no. 69789/01, ECHR 2001-IX).
In
other examples the Court also took the view, in the light of the
specific facts of the cases concerned, and having regard to the
subsidiary nature of the Convention mechanism, that new domestic
remedies had not been exhausted (see the following
decisions: Nogolica v. Croatia, no. 77784/01, ECHR
2002-VIII; Slaviček v. Croatia, no.
20862/02, ECHR 2002-VII; Andrášik and Others v.
Slovakia, nos. 57984/00, 60226/00, 60242/00, 60679/00, 60680/00
and 68563/01, ECHR 2002-IX; and Içyer v. Turkey,
no. 18888/02, ECHR 2006-I).
In
situations where there is no effective remedy affording the
opportunity to complain of alleged violations, individuals are
systematically compelled to submit to the European Court of Human
Rights applications which could have been investigated first of all
within the domestic legal order. In that way, the functioning of the
Convention system risks losing its effectiveness in the long term
(the most pertinent example is the Broniowski v. Poland
case ([GC], no. 31443/96, ECHR 2004-V).
In my
opinion the above examples provide an opportunity to review the
conditions for admissibility in the event of a major change in the
circumstances of the case. For the similar post-Loizidou
cases, the Court can always reconsider its admissibility decision and
examine the preliminary objection of failure to exhaust domestic
remedies.
Since
the Court may reject “at any stage of the proceedings”
(Article 35 § 4 of the Convention) an application which it
considers inadmissible, new facts brought to its attention may lead
it, even when examining the case on the merits, to reconsider the
decision in which the application was declared admissible and
ultimately declare it inadmissible pursuant to Article 35 § 4 of
the Convention, taking due account of the context (see, for example,
Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003,
and Azinas v. Cyprus [GC], no. 56679/00, §§ 37-43,
ECHR 2004-III).
The
existence of a “new fact” which has come to light
after the admissibility decision may prompt the Court to reconsider
that decision.
I
consider that the Law on Compensation for Immovable Properties (Law
no. 67/2005) and the Commission set up to deal with compensation
claims, which are based on the guiding principles laid down by the
Court in the Xenides-Arestis case, are capable of providing an
opportunity for the State authorities to provide redress for breaches
of the Convention's provisions, including breaches alleged in
applications already lodged with the Court before the Act's entry
into force (see Içyer, cited above, § 72). That
consideration also applies to applications already declared
admissible by the Court (see Azinas, cited above).
In
order to conclude whether there has or has not been a breach of the
Convention, complainants must first exercise the new domestic remedy
and then, if necessary, lodge an application with the European Court
of Human Rights, the international court. Following that logic, I
cannot in this case find any violation of the Convention's
provisions.
