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FOURTH
SECTION
CASE OF CHRISTODOULIDOU v. TURKEY
(Application
no. 16085/90)
JUDGMENT
(Just
satisfaction)
STRASBOURG
26
October 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Christodoulidou 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 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16085/90) 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, Mrs Lella Christodoulidou
(“the applicant”), on 12 January 1990.
- In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court found a continuing 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 her
properties as well as any compensation for the interference with her
property rights. Furthermore, it found that it was not necessary to
examine the applicant's complaint under Article 14 of the Convention
and that, in breach of Article 3 of the Convention, the applicant had
been submitted to an inhuman and degrading treatment. Finally, it
held that there had been no violation of Article 11 of the Convention
(Christodoulidou v. Turkey, no. 16085/90, §§ 44,
46, 61 and 77, and points 1-4 of the operative provisions, 22
September 2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of 289,746 Cypriot pounds (CYP –
approximately 495,060 euros (EUR)) for the deprivation of her
properties concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
2000. A valuation report, setting out the basis of the applicant's
loss, was appended to her observations. Furthermore, the applicant
claimed CYP 100,000 (approximately EUR 170,860) in respect of
non-pecuniary damage and approximately EUR 6,834 for the costs
and expenses incurred before the Court.
- The
Court awarded the applicant EUR 5,000 in respect of the non-pecuniary
damage related to the violation of Article 3 of the Convention
(ibid., § 89, and point 5 of the operative provisions). Since
the question of the application of Article 41 of the Convention in
respect of the violation of Article 1 of Protocol No. 1 to the
Convention and of the costs and expenses was not ready for decision,
the Court reserved it and invited the Government and the applicant to
submit, within three months, their written observations on that issue
and, in particular, to notify the Court of any agreement they might
reach (ibid., §§ 90 and 93, and point 6 of the operative
provisions).
- On
4 March 2010 the Court invited the applicant and the Government to
submit any materials which they considered relevant to assessing the
1974 market value of the properties concerned by the principal
judgment. The applicant was moreover invited to submit written
evidence that the properties at stake were still registered in her
name or to indicate and substantiate any transfer of ownership which
might have taken place.
- The
applicant and the Government each filed observations on these
matters. On 21 June 2010 the applicant produced certificates of
ownership of Turkish-occupied immovable properties issued by the
Department of Lands and Surveys of the Republic of Cyprus. It
transpires from these documents that on 22 April 2010 the properties
described in paragraph 14 below were registered in the name of
“Christodoulidou Lella”.
THE LAW
I. PRELIMINARY ISSUE
- In
a letter of 22 April 2010 the Government requested the Court to
decide that it was not necessary to continue the examination of the
applicant's just satisfaction claims. They invoked the principles
affirmed by the Grand Chamber in Demopoulos and Others v. Turkey
([GC] (Dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03,
10200/04, 14163/04, 19993/04, 21819/04, 1 March 2010) and argued
that the applicant should address her claims to the Immovable
Property Commission (the “IPC”) instituted by the “TRNC”
Law 67/2005. They reiterated their position on the issue of
exhaustion of domestic remedies in the present case and in other
similar cases on 8 and 22 June 2010.
- The
Court first observes that the Government's submissions were
unsolicited; they were received by the Registry long after the
expiration of the time-limit for filing comments on just satisfaction
and almost two months after the delivery of the Grand Chamber's
decision in Demopoulos. It could therefore be held that the
Government are estopped from raising the matter at this stage of the
proceedings.
- In
any event, the Court cannot but reiterate its case-law according to
which objections based on non-exhaustion of domestic remedies raised
after an application has been declared admissible cannot be taken
into account at the merits stage (see Demades v. Turkey (merits),
no. 16219/90, § 20, 31 July 2003, and Alexandrou
v. Turkey (merits), no. 16162/90, § 21, 20 January
2009) or at a later stage. This approach has not been modified by the
Grand Chamber, as the cases of Demopoulos and Others had not
been declared admissible when Law 67/2005 entered into force and when
Turkey objected that domestic remedies had not been exhausted.
- It
follows that the Government's request to stay the examination of the
applicant's claims for just satisfaction should be rejected. The
Court will therefore continue to examine the case under Article 41 of
the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
- In
her just satisfaction claims of April 2000, the applicant requested
289,746 Cypriot pounds (CYP –
approximately 495,060 euros (EUR)) for pecuniary damage. She relied
on an expert's report assessing the value of her losses which
included the loss of annual rent collected or expected to be
collected from renting out her properties, plus interest from the
date on which such rents were due until the date of payment. The rent
claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until 2000. The applicant did not claim compensation for any
purported expropriation since she was still the legal owner of the
properties. The valuation report contained a description of Kyrenia,
Kazaphani and Karmi, where the applicant's properties were located.
- The
starting point of the valuation report was the rental value of the
applicant's properties in 1974, calculated on the basis of a
percentage (varying from 6% to 4%) of their market value. This sum
was subsequently adjusted upwards according to an average
annual rental increase of 12% (5% for the house described in
paragraph 10 (a) of the principal judgment). Compound interest for
delayed payment was applied at a rate of 8% per annum.
- According
to the expert, the 1974 values of the applicant's properties were as
follows:
(a)
property described in paragraph 10 (a) of the principal judgment
(Kyrenia/Pano Kyrenia, plot no. 45, sheet/plan 12/21.1.12,
registration no. C1703, house with garden; according to the
applicant, the surface/area of the house and of the garden were,
respectively 190 and 753 m²): market value CYP 26,500
(approximately EUR 45,277); rental value CYP 1,325
(approximately EUR 2,263);
(b)
property described in paragraph 10 (b) of the principal judgment
(Kyrenia/Kazafani, plot no. 95/1/1, sheet/plan 12/22W2,
garden/orchard; area: 2,351 m²): market value CYP 9,404
(approximately EUR 16,067); rental value CYP 564
(approximately EUR 963);
(c)
property described in paragraph 10 (c) of the principal judgment
(Kyrenia/Karmi, plot no. 222, sheet/plan 12/27E2, field; area:
3,138 m²): market value CYP 3,138 (approximately
EUR 5,361); rental value CYP 188 (approximately EUR 321);
(d)
property described in paragraph 10 (d) of the principal judgment
(Kyrenia/Karmi, plot no. 282, sheet/plan 12/27E2, field; area:
1,650 m²): market value CYP 1,650 (approximately
EUR 2,819); rental value CYP 99 (approximately EUR 169);
(e)
property described in paragraph 10 (e) of the principal judgment
(Kyrenia/Karmi, plot no. 291/1, sheet/plan 12/27E2, field; area:
2,264 m²): market value CYP 2,264 (approximately
EUR 3,868); rental value CYP 136 (approximately EUR 232).
- In
a letter of 28 January 2008 the applicant observed that it had been a
considerable time since she had presented her claims for just
satisfaction and that the claim for pecuniary losses needed to be
updated according to the increase in the market value of land in
Cyprus (between 10 and 15% per annum).
- On
21 June 2010 the applicant produced a revised valuation report, which
was meant to cover the loss of use for the period between 1 January
1987 and 30 June 2010. On the basis of the criteria used in the
previous report, the expert appointed by the applicant considered
that the whole sum due to his client for pecuniary damage was EUR
1,655,255.
- The
expert produced synoptic tables of “comparable sales for
properties at Karmi, Kazafani and Pano and Kato Keryneia”, from
which it transpired that in the period 1969-1973 fields in the first
two locations were sold at prices comprised between CYP 0.75
(approximately EUR 1.28) and CYP 2.99 (approximately EUR 5.10)
per square metre, while in the same period building sites in Pano and
Kato Keryneia had a market value between CYP 9.28 (approximately EUR
15.85) and CYP 25.46 (approximately EUR 43.50) per square metre.
In 1973 three apartments located in Nicosia had market prices of CYP
106 (approximately EUR 181), CYP 116 (approximately EUR 198) and
CYP 130 (approximately EUR 222) per square metre. The expert
finally underlined that in the period 1973-2008 apartments in the
unoccupied areas of Greater Nicosia had had an average annual
increase in capital value of 8% per annum. The average annual
increase of land in the same period was of 14.75%
- In
her just satisfaction claims of April 2000, the applicant further
claimed CYP 40,000 (approximately EUR 68,344) in respect of
non-pecuniary damage. She stated that this sum had been calculated on
the basis of the sum awarded by the Court in the Loizidou
v. Turkey judgment ((just satisfaction), 28 July
1998, Reports of Judgments and Decisions 1998-IV), taking
into account, however, the fact that the period 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. The applicant also
claimed CYP 20,000 (approximately EUR 34,172) in respect of
the moral damage suffered for the loss of her home and CYP 40,000
(approximately EUR 68,344) for the “violations of Articles
3, 10 and 11” of the Convention. The total sum claimed for
non-pecuniary damage was thus CYP 100,000 (approximately
EUR 170,860).
(b) The Government
- Following
a request from the Court, on 15 September 2008 the Government filed
comments on the applicant's claims for just satisfaction. They
observed that the applicant's properties were “fields”
and that very little rent could be obtained from fields in Cyprus. In
any event, the alleged 1974 market value of the properties was
exorbitant, highly excessive and speculative; it was not based on any
real data which could be used 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.
- As
an annual increase in the value of the properties had been applied,
it would be unfair to add compound interest for delays in payment.
Moreover, the applicant's calculations had made no allowance for
outgoings such as tax liabilities, expenses and costs for repairing
the properties.
- In
their comments of 22 June 2010, the Government recalled that in the
case of Demopoulos and Others (cited above) the Grand Chamber
had found that the IPC was an adequate domestic remedy for those
claiming a violation of Article 1 of Protocol No. 1. Notwithstanding
the adoption of a judgment on the merits, it would still be open to
the applicant to apply to the IPC, which would calculate the current
value and the 1974 value of the properties “in a credential way
based on actual data”. On 27 May 2010 the IPC had sent a letter
to the applicant's representative, inviting his client to introduce
an application before it.
- The
Government recalled that under Law No. 67/2005, the following means
of redress were available: a) restitution; b) compensation;
c) exchange. The relevant provisions of the law at issue are
described in Demopoulos and Others (cited above, §§
35-37).
- The
Government further noted that in making its assessment as regarded
compensation for the loss of use, the IPC had collected data from the
Department of Lands and Surveys on the 1973-1974 purchase prices for
comparable properties. It had also examined the development of
interest rates of the Cyprus Central Bank. The loss of income was
then calculated by assuming that the obtainable rent would have been
5% of the value of the properties; this last value had been modified
every year on the basis of the land market value index. Cyprus
Central Bank interest rates had been applied on the sums due since
1974.
- Being
in possession of the land registers, the Turkish-Cypriot authorities
were in a better position than the applicants and the Greek-Cypriot
authorities to assess the market values of the properties in a
realistic and reliable manner. The applicants had put forward
exaggerated claims and had tended to inflate the 1974 values of their
possessions. The Government therefore requested the Court to
rule on compensation on the basis of the calculations made by the
Turkish-Cypriot authorities, which were “credential and
objective in every aspect”.
- 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 14 (c), (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. Had the applicant applied to
the IPC, the latter would have offered CYP 93,912.28
(approximately EUR 160,458) to compensate the loss of use and
CYP 95,735.36 (approximately EUR 163,573) for the value of
the properties. According to an expert appointed by the authorities
of the “TRNC”, the 1974 open-market value of all the
properties described in paragraph 14 above was CYP 9,291
(approximately EUR 15,874).
- Finally,
the Government considered that the amount claimed in respect of
non-pecuniary damage was excessive and unrealistic; given the
existence of an effective domestic remedy, the Court should keep the
award for such damage to a minimum.
2. The Court's assessment
- The
Court recalls that it has concluded that there had been a continuing
violation of the applicant's rights guaranteed by Article 1 of
Protocol No. 1 by virtue of the complete denial of the applicant's
right to the peaceful enjoyment of her properties in northern Cyprus
(see paragraph 44 of the principal judgment). Furthermore,
its finding of a violation of Article 1 of Protocol No. 1 was based
on the fact that, as a consequence of being continuously denied
access to her land and real estate, the applicant had effectively
lost all access and control as well as all possibilities to use and
enjoy her properties (see paragraph 42 of the principal judgment).
She is therefore entitled to a measure of compensation in respect of
losses directly related to this violation of her rights as from the
date of the deposit of Turkey's declaration recognising the right of
individual petition under former Article 25 of the Convention,
namely 22 January 1987, until the present time (see Cankoçak
v. Turkey, nos. 25182/94 and 26956/95, § 26,
20 February 2001, and Demades v. Turkey (just
satisfaction), no. 16219/90, § 21, 22 April 2008).
- In
connection with this, the Court observes that the affirmations of
ownership of Turkish-occupied immovable properties produced by the
applicant (see paragraph 6 above) show that on 22 April 2010 she was
still the owner of the properties described in paragraph 14 above.
- In
the opinion of the Court, the valuations furnished by the applicant
involve a significant degree of speculation and make insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international (see
Loizidou (just satisfaction), cited above, § 31).
Accordingly, in assessing the pecuniary damage sustained by the
applicant, the Court has, as far as appropriate, considered the
estimates provided by her (see Xenides-Arestis v. Turkey (just
satisfaction), no. 46347/99, § 41, 7 December
2006). In general it considers as reasonable the approach to
assessing the loss suffered by the applicant with reference to the
annual ground rent, calculated as a percentage of the market value of
the properties, that could have been earned during the relevant
period (see Loizidou (just satisfaction), cited above, §
33, and Demades (just satisfaction), cited above, § 23).
Furthermore, the Court has taken into account the uncertainties,
inherent in any attempt to quantify the real losses incurred by the
applicant (see Loizidou v. Turkey (preliminary objections), 23
March 1995, § 102, Series A no. 310, and (merits)
18 December 1996, § 32, Reports 1996-VI).
- The
Court notes that notwithstanding its request to submit material
relevant to assessing the 1974 market value of the applicant's
properties, the parties have produced few elements in this respect.
The Government have relied on the accuracy of the IPC's calculations
(see paragraphs 23-24 above), while the applicant has produced
information according to which: in the period 1969-1973 fields in
Karmi and Kazafani were sold at prices comprised between EUR 1.28 and
EUR 5.10 per square metre; in the same period building sites in Pano
and Kato Keryneia had a market value between EUR 15.85 and EUR 43.50
per square metre; in 1973 apartments located in Nicosia were sold for
prices comprised between EUR 181 and EUR 222 per square
metre (see paragraph 17 above).
- The
Court further observes that the applicant submitted an additional
claim in the form of annual compound interest in respect of the
losses on account of the delay in the payment of the sums due. While
the Court considers that a certain amount of compensation in the form
of statutory interest should be awarded to the applicant, it finds
that the rates applied by her are on the high side (see, mutatis
mutandis, Demades (just satisfaction), cited above, §
24).
- Finally,
the Court is of the opinion that an award should be made in respect
of the anguish and feelings of helplessness and frustration which the
applicant must have experienced over the years in not being able to
use her properties as she saw fit (see Demades (just
satisfaction), cited above, § 29, and Xenides-Arestis
(just satisfaction), cited above, § 47). It recalls,
however, that an award for the breach of Article 3 of the Convention
has already been made in the principal judgment (see paragraph 4
above) and that on 10 November 1999 the applicant withdrew her
complaint under Article 10 of the Convention. As indicated in the
decision on the admissibility, this complaint did “no longer
form part of the application”. As far as the applicant's right
to respect for her home is concerned, it is to be observed that no
complaint under Article 8 of the Convention had been raised before
the application was declared admissible. Moreover, the Court found
that there had been no violation of Article 11 of the Convention (see
paragraph 2 above). It follows that no further award for pecuniary or
non-pecuniary damage should be made on these accounts.
- Having
regard to the above considerations, the Court is of the opinion that
the sums claimed by the applicant in respect of pecuniary and
non-pecuniary damage (respectively EUR 1,655,255 and EUR 170,860
– see paragraphs 16 and 18 above) are excessive. At the
same time, the amount which the “TRNC” authorities could
have offered the applicant in respect of loss of use (the global sum
of EUR 160,458 – see paragraph 25 above) does not seem to take
into due account the number and nature of the properties owned by the
applicant and described in paragraph 14 above. These properties
consisted in one house of 190 square metres with a garden of 753
square metres and four garden/fields of a total area of 9,403 square
metres. Making its assessment on an equitable basis, the Court
decides to award the applicant EUR 200,000 in respect of pecuniary
and non-pecuniary damage.
B. Costs and expenses
- In
her just satisfaction claims of April 2000, the applicant sought CYP
4,000 (approximately EUR 6,834) for the costs and expenses incurred
before the Court. This sum included the cost of the expert report
assessing the value of her properties. On 21 June 2010 the applicant
specified that her total legal fees amounted to EUR 14,759.68, while
the new expert's report had a cost of EUR 1,380.
- The
Government did not comment on this point.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see, for
example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- The
Court notes that the case involved perusing a certain amount
of factual and documentary evidence and required a fair degree of
research and preparation. In particular, the
costs associated with producing valuation reports in view of the
continuing nature of the violation at stake were essential to enable
the Court to reach its decision regarding the issue of just
satisfaction (see Demades (just satisfaction), cited
above, § 34, and Xenides-Arestis (just
satisfaction), cited above, § 47).
- Although
the Court does not doubt that the fees claimed were actually
incurred, it considers the amount claimed for the costs and expenses
relating to the proceedings before it excessive. It is also to be
recalled that in the principal judgment it found no violation of
Article 11 of the Convention (see paragraph 2 above). In the light of
the above, the Court decides to award the total sum of EUR 8,000 for
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
- Dismisses the Government's request to
stay the examination of the applicant's claims for just satisfaction;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
200,000 (two hundred thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
