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FOURTH
SECTION
CASE OF MICHAEL v. TURKEY
(Application
no. 18361/91)
JUDGMENT
(just
satisfaction)
STRASBOURG
22
June 2010
FINAL
22/11/2010
This
judgment has become final under Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Michael v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Işıl
Karakaş, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having deliberated in private on 1 June
2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18361/91) 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 Michalis Michael (“the
applicant”), on 7 June 1991.
- In
a judgment delivered on 27 January 2009 (“the principal
judgment”), the Court dismissed various preliminary objections
raised by the Turkish Government and found continuing violations of
Article 8 of the Convention by reason of the complete denial of the
right of the applicant to respect for his home and 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 (Michael v. Turkey, no. 18361/91, §§
12, 25 and 35 and points 1-3 of the operative provisions, 27 January
2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of 41,113 Cypriot pounds (CYP –
approximately 70,245 euros (EUR)) for the deprivation of his
properties 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 CYP 55,000 (approximately EUR 93,973) in
respect of non-pecuniary damage and EUR 10,171.5 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., §§
50 and 53, and point 4 of the operative provisions).
- On
13 July 2009 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 and the Government each filed comments on this matter.
- On
4 September 2009 the applicant was invited to submit written
evidence that the property at stake were still registered in his name
or to indicate and substantiate any transfer of ownership which might
have taken place.
- On
30 September 2009 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 29 September 2009 the property described in
paragraph 15 below was registered in the name of “Michael
Andrea Michael”.
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.
- 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 12 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 29 October 1999, the applicant
requested CYP 14,804 (approximately EUR 25,294) 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 field in Ayios Epiktitos, 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 1999. The applicant did not claim compensation for
any purported expropriation since he was still the legal owner of the
property. The valuation report contained a description of Ayios
Epiktitos village and of the applicant's field, which was a grove
covered with olive and carob trees. It had mainly an agricultural use
and was registered as follows: Kyrenia, Ayios Epiktitos, Mevlitoudi,
field with trees, sheet/plan 13/25, plot no. 120, surface: hectares
2, decares 2, sq. m. 663, share: ¼ .
- According
to the valuation report, the rent payable for agricultural lands
depended on the nature of the use and on the productivity of the
property. According to the information provided by the applicant, the
trees in his field were in a very good condition and in full
production. As olive and carob trees had an indefinite life span and
there was a steady demand for their products, the rent payable in
1974 could be fixed at CYP 35 (approximately EUR 60) per decare per
annum. As the applicant owned ¼ of a field of approximately 22
decares, the rent payable in 1974 was estimated at CYP 198
(approximately EUR 338). The expert further took into account the
trends in rent increase (an average of 7% per annum for agricultural
properties). Moreover, compound interest for delayed payment was
applied at a rate of 8% per annum.
- On
25 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 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 21,407 plus CYP 19,706 for
interests (the interest applied from 2001 onwards was 6 percent per
annum). The total sum claimed under this head was thus CYP 41,113
(approximately EUR 70,245).
- On
30 September 2009 the applicant produced a revised valuation report,
which was meant to cover the loss of use for the period between
1 January 1987 and 31 December 2009. On the basis of the
criteria used in the previous reports, the expert appointed by the
applicant considered that the whole sum due to his client for
pecuniary damage was EUR 74,234.
- The
applicant's expert pointed out that he had found, in the Kyrenia Land
Registry Office, a sale of a plot of land similar to the one of his
client: a field with carob and olive trees of a total extent of
41.472 decares had been sold for CYP 2,067 (approximately EUR 3,531).
The sale file bore the no. 5273/72, but the sale contract had been
stipulated in 1967. In the light of this sale, it could be said that
the market price of a decare of agricultural land was, in 1974, of
the order of CYP 66 (approximately EUR 112). In the expert's
opinion, this confirmed that it had been appropriate and fair to
assume that the 1974 annual rent for the applicant's field was CYP 35
(approximately EUR 60) per decare (see paragraph 16 above).
- In
his just satisfaction claims of 29 October 1999, the applicant
further claimed CYP 55,000 (approximately EUR 93,973) in respect of
non pecuniary damage. 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 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 and
that there had also been a violation of Article 8 of the Convention.
(b) The Government
- The
Government filed comments on the applicant's updated claims for just
satisfaction on 30 June 2008, 15 October 2008 and 6 October 2009.
They pointed out that the present application was part of a cluster
of similar cases raising a number of problematic issues. For
instance, some applicants had shared properties and 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 property
to the State, thereby relinquishing title to and claims in respect of
it.
- The
report prepared by the Turkish-Cypriot authorities specified that it
would not be possible to envisage restitution of the applicant's
property, which could only 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 plot of land between 1974 and the date of payment. Had the
applicant applied to the IPC, the latter would have offered
CYP 39,644.51 (approximately EUR 67,736) to compensate the loss
of use and CYP 42,226.78 (approximately EUR 72,148) for the
value of the property. According to an expert appointed by the
authorities of the “TRNC”, the 1974 open-market value of
the applicant's plot of land was CYP 6,900 (approximately EUR
11,789). Upon fulfilment of certain conditions, the IPC could also
have offered the applicant exchange of his property with
Turkish-Cypriot properties located in the south of the island.
- In
their comments of 6 October 2009 the Government noted that the offer
made by the IPC was close to the sums sought by the applicant and
would constitute a “reasonable and realistic amount of just
satisfaction”.
- The
Government further observed 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.
- It
could therefore be said that the IPC had used the same criteria as
the Greek-Cypriots applicants. However, being in possession of the
land registers in which comparable sales had been recorded, it was
better placed to assess the 1974 market values of the properties.
Applicants had, in general, tended to exaggerate and inflate these
values. Their calculations were highly presumptive; for instance, the
percentage used for assessing the loss of income had frequently been
the same for buildings, fields, orchards and plots of land,
irrespective of their location, of the existence of electricity or
water supplies and of an access to a minor or major road. On the
contrary, the Turkish-Cypriot authorities had taken all these factors
into consideration; they had applied a higher percentage for
buildings in built-up areas than for vacant fields.
- The
Government also insisted that, as it could not be excluded that the
properties at issue had been transferred within the legal system of
Southern Cyprus, applicants should be required to provide search
certificates issued by the Greek-Cypriot Department of Lands and
Surveys. Failure to substantiate title to the properties at the
material time and at the time of the Court's judgment should be
considered as a failure to cooperate with the Court. No just
satisfaction should be awarded in respect to unsubstantiated or
dubious claims.
- After
the delivery of the Court's principal judgment, the Turkish-Cypriot
authorities had invited the applicant to apply to the IPC in order to
reach an agreement on the matter of compensation. The applicant had
not replied to this invitation. This attitude was mainly due to
political reasons and to the pressures exerted by the Greek-Cypriot
authorities in order to discourage their citizens from applying to
the IPC. Misleading information had been given about its powers and
the Greek-Cypriots who had applied to it had been questioned by the
Office of the Attorney General. In 2006 the Greek-Cypriot media had
even revealed a “shame list” and published the names of
applicants to the IPC.
- Finally,
the Government noted that the applicant's claim in respect of
non-pecuniary damage was excessive and incompatible with the practice
of the Court.
2. The Court's assessment
- The
Court recalls that in its principal judgment it has concluded that
there had been a continuing violation of the applicant's rights
guaranteed by Article 8 of the Convention and Article 1 of
Protocol No. 1 by virtue of the complete denial of the applicant's
rights with respect to his home and the peaceful enjoyment of his
field in Ayios Epiktitos (see paragraphs 35 and 25 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 field, the applicant had
effectively lost all access and control as well as all possibilities
to use and enjoy his property (see paragraph 23 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 on which he formally acquired ownership of the
property, namely 27 June 1990 (see paragraph 10 of the principal
judgment), until the present time (see, mutatis mutandis,
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 notes that the document produced by
the applicant (see paragraph 8 above) shows that on 29 September 2009
he was still the owner of a share of the field described in paragraph
15 above.
- However,
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 v. Turkey
(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 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 field,
the parties have produced few elements in this respect. The
Government have relied on the accuracy of the IPC's calculations (see
paragraphs 24-26 above), while the applicant has referred to the
sale, in 1967, of a comparable field. According to his expert's
assessment, this would show that the 1974 market price of
agricultural land in Cyprus was approximately CYP 66 per decare (see
paragraph 19 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). Moreover, the applicant's expert has calculated the loss of
rents as from January 1987, when Turkey had recognised the right of
individual petition, and not from 27 June 1990, when the applicant
became the legal owner of the field in Ayios Epiktitos (see paragraph
10 of the principal judgment and paragraph 31 above).
- Finally,
the Court considers 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 and enjoy his home (see Demades
(just satisfaction), cited above, § 29, and Xenides-Arestis
(just satisfaction), cited above, § 47).
- Having
regard to the above considerations and to the fact that the parties
submitted estimates which were, to a large extent, similar, the Court
does not see any reason for significantly departing from the sum
which the IPC could have offered the applicant in respect of loss of
use (approximately EUR 67,736 – see paragraph 24 above).
Making its assessment on an equitable basis, the Court decides to
award EUR 68,000
under the head of pecuniary and non-pecuniary
damage.
B. Costs and expenses
- In
his just satisfaction claims of 29 October 1999, relying on bills
from his representative, the applicant sought CYP 3,400
(approximately EUR 5,809) for legal fees and CYP 1,080 (approximately
EUR 1,845) for the cost of the expert report assessing the value of
his property. In his updated claims for just satisfaction of
25 January 2008, he submitted additional bills of costs for the
new valuation report and for legal fees amounting to EUR 517.5 and
EUR 2,000 respectively. The total sum sought for cost and
expenses was thus EUR 10,171.5.
- 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 violations 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).
- 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
a 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
68,000 (sixty-eight thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
8,000 (eight thousands 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 22 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
