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FOURTH
SECTION
CASE OF RAMON v. TURKEY
(Application
no. 29092/95)
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 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 5 October 2010,
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.
- In
a judgment delivered on 22 September 2009 (“the principal
judgment”), the Court dismissed various preliminary objections
raised by the Turkish Government and 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 his property as well as any compensation for the
interference with his property rights. Furthermore, it found that it
was not necessary to examine the applicant's complaint under Article
8 of the Convention (Ramon v. Turkey, no. 29092/95,
§§ 11, 23 and 28 and points 1-3 of the operative
provisions, 22 September 2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of 2,332,269 Cypriot pounds (CYP –
approximately 3,984,914 euros (EUR)) for the deprivation of his
property concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
31 December 2007. Two valuation reports, setting out the basis of the
applicant's loss, were appended to his observations. Furthermore, the
applicant claimed approximately EUR 255,032 in respect of
non-pecuniary damage and approximately EUR 11,925 for the costs
and expenses incurred before the Court.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it in whole 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., §§
43 and 46, and point 4 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 property concerned by the principal
judgment. The applicant was moreover invited to submit written
evidence that the property at stake was still registered in his 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 26 May 2010 the applicant produced a certificate of
ownership of Turkish-occupied immovable property issued by the
Department of Lands and Surveys of the Republic of Cyprus. It
transpires from this document that on 12 March 2010 the property
described in paragraph 13 below was registered partly in the name of
the applicant, partly in the name of the Bogazi Improvement Board,
with whom the applicant had entered into a contract of sale.
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 his 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.
- Furthermore,
the Court considers that its previous finding in the present case
that the applicant was not required to exhaust the remedy introduced
by Law 67/2005 constitutes res judicata. It recalls that after
the compensation mechanism before the IPC was introduced, the
Government raised an objection based on non-exhaustion of domestic
remedies. This objection was rejected in the principal judgment (see
paragraph 11 of the principal judgment and point 1 of its operative
provisions). The Government also unsuccessfully requested the
referral of the case to the Grand Chamber.
- 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
his just satisfaction claims of November 1999, the applicant
requested CYP 790,528 (approximately EUR 1,350,696) 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, 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 latter consisted of a plot of land registered under
sheet/plan 15/28 E.1, Block E, Boghaz Village, Famagusta, Ayios
Spyridon locality; it had a surface of 8,947 square metres (see
paragraph 9 of the principal judgment). The applicant alleged that by
August 1974 he had nearly finished the construction of a
clinic/health centre on this plot of land. The clinic had 32 rooms
with private balconies, a restaurant, a lecture room, a library and a
swimming pool (see paragraph 10 of the principal judgment).
- 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 in 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).
- On
26 May 2010 the applicant produced another revised valuation report,
which was meant to cover the loss of use for the period between
1 January 1987 and 30 June 2010. The expert appointed by the
applicant considered that the whole sum due to his client for
pecuniary damage was EUR 4,293,896.
- The
valuation report stated that the applicant had bought the land on
which the clinic was erected on 1 August 1972 for the price of CYP
0.748 (approximately EUR 1.27) per square metre. Assuming a 25 %
annual increase, the expert fixed the 1974 price at CYP 1.169
(approximately EUR 2) per square metre. As the land at issue had
a surface area of 8,847 square metres, its total 1974 value was CYP
10,342 (approximately EUR 17,670). Using as a starting point a table
on “average cost per square metre of dwellings in the private
sector 1984-2008”, the expert further assumed that the cost of
construction was CYP 5,500 (approximately EUR 9,397) per room
(including common areas), and thus a total of CYP 176,000
(approximately EUR 300,713). Applying a “development factor”
of 1.20, he concluded that the 1974 market value of the clinic and of
the land on which it was erected could be fixed at CYP 225,000
(approximately EUR 384,435). The applicant's expert also
referred to a “comparable sale” in Bogazi village,
showing that on 25 May 1972 a field of 19,593 square metres was sold
for CYP 28,000 (approximately EUR 47,840).
- 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 v. Turkey ((just
satisfaction), 28 July 1998, Reports of Judgments and Decisions
1998-IV), taking into account, however, that the period of time
for which the damage was claimed in the instant case was longer.
- 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
- The
Government filed comments on the applicant's updated claims for just
satisfaction on 30 June 2008, 15 October 2008 and 22 June 2010. They
pointed out that the present application was part of a cluster of
similar cases raising a number of problematic issues and 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. Moreover, 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 property and its 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 property referred to in the application was a forest land;
it 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 value) and increase in value of the property between 1974 and
the date of payment. However, as a forest land was public property,
it had not been possible to estimate its value. Upon
fulfilment of certain conditions, the IPC could have offered the
applicant exchange of his property with Turkish-Cypriot properties
located in the south of the island.
- 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 property “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 property; 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 property
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 confirmed that it
would not be possible to envisage restitution of the property
described in paragraph 13 above. Had the applicant applied to
the IPC, the latter would have offered CYP 262,857.13
(approximately EUR 449,117) to compensate the loss of use and
CYP 267,959.87 (approximately EUR 457,836) for the value of
the property. According to an expert appointed by the authorities of
the “TRNC”, the 1974 open-market value of the latter was
CYP 40,000 (approximately EUR 68,344).
- 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 reason of the complete denial of the right of the
applicant to the peaceful enjoyment of his property in northern
Cyprus (see paragraph 23 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 his land since 1974, the applicant had effectively
lost all access and control as well as all possibilities to use and
enjoy his property (see paragraph 21 of the principal judgment). He
is therefore entitled to a measure of compensation in respect of
losses directly related to this violation of his rights as from the
date of 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 affirmation of
ownership of Turkish-occupied immovable property produced by the
applicant (see paragraph 6 above) shows that on 12 March 2010 he and
his contractual counterpart (the Bogazi Improvement Board) were still
the owners of the property described in paragraph 13 above. It is
also to be recalled that in the principal judgment the Court has held
that, having concluded a sale agreement and having paid the price for
purchasing the land, the applicant had a legitimate expectation that
a title deed would be issued in his name, and therefore a
“possession” within the meaning of Article 1 of Protocol
No. 1 (see paragraph19 of the principal judgment).
- 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), § 31, Reports of
Judgments and Decisions 1998-IV, 28 July 1998). An even
higher degree of speculation is involved in calculating the profits
which the applicant could have earned by running his clinic/health
centre, a structure which had not been completed and in which no
established course of business was being carried on at the time of
the Turkish invasion. Accordingly, in assessing the pecuniary damage
sustained by the applicant, the Court has, as far as appropriate,
considered the estimates provided by him (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 property, that could have been earned during
the relevant period (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
property, the parties have produced few elements in this respect. The
Government have relied on the accuracy of the IPC's calculations
(see paragraphs 22 and 26-27 above), while the applicant has referred
to a “comparable sale” in Bogazi (see paragraph 18
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 him 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 his property as he saw fit (see Demades (just
satisfaction), cited above, § 29, and Xenides-Arestis
(just satisfaction), cited above, § 47).
- 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 4,293,896 and EUR 255,032
– see paragraphs 17 and 19-20 above) are manifestly
excessive. It notes that at the time of the Turkish invasion the
works for the construction of the applicant's clinic had not been
terminated and the procedure for parcelling the plot had not been
completed (see paragraph 9 of the principal judgment). Moreover,
according to the applicant's expert, two years before the Turkish
invasion the plot of land on which the clinic should have been
erected had been bought for CYP 0.748 per square metre, thus a total
price of approximately EUR 11,434 (see paragraph 18 above) The Court
considers that the amount which, according to the Government, the IPC
could have offered the applicant in respect of loss of use
(approximately EUR 449,117 – see paragraph 28 above)
constitutes a fair basis for compensating the damage sustained by Mr
Ramon. It recalls that his property consisted in a plot of
constructible land of a total area of 8,947 square metres (see
paragraph 13 above). Making
its assessment on an equitable basis, the Court decides to award the
applicant EUR 450,000 in respect of pecuniary and non-pecuniary
damage.
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 property. 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. Finally, on 26 May 2010 the applicant
submitted that his further legal fees and expert report's costs
amounted to EUR 2,955.5 and EUR 1,000 respectively.
- 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 updated valuation reports in view of
the continuing nature of the violation at stake were essential for
enabling the Court to reach its decision regarding the issue of just
satisfaction (see Demades v. Turkey (just
satisfaction), cited above, § 34).
- 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 and decides to award
the total sum of EUR 8,000.
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
450,000 (four hundred and fifty 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
