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FOURTH
SECTION
CASE OF KYRIAKOU v. TURKEY
(Application
no. 18407/91)
JUDGMENT
(just
satisfaction)
STRASBOURG
22
June 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 Kyriakou 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. 18407/91) 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 Yiannis Kyriakou (“the
applicant”), on 31 May 1991.
- In
a judgment delivered on 27 January 2009 (“the principal
judgment”), the Court held that the applicant's heirs (his wife
and sons) had standing to continue the present proceedings in his
stead, 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 properties 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 complaints under Articles 1, 13 and 14 of the Convention
(Kyriakou v. Turkey, no. 18407/91, §§ 14, 15,
26, 36, 39 and 42 and points 1-5 of the operative provisions,
27 January 2009).
- Under
Article 41 of the Convention the applicant's heirs sought just
satisfaction of 53,600 Cypriot pounds (CYP –
approximately 91,580 euros (EUR)) for the deprivation of the
applicant's properties concerning the period between January 1987,
when the respondent Government accepted the right of individual
petition, and September 1999. A valuation report, setting out the
basis of the applicant's loss, was appended to their observations.
Furthermore, the applicant's heirs claimed CYP 80,000 (approximately
EUR 136,688) in respect of non-pecuniary damage and
approximately EUR 4,476 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., §§
57 and 60, and point 6 of the operative provisions).
- On
13 July 2009 the Court invited the applicant's heirs 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
Government filed comments on this matter.
- On
4 September 2009, the applicant's heirs were invited to submit,
by 6 October 2009, written evidence that the properties at stake were
still registered in their name or to indicate and substantiate any
transfer of ownership which might have taken place. On 16 October
2009 the applicant's heirs' representative requested an extension
until 30 October of the time allowed for submission of comments on
just satisfaction and evidence of ownership. By a letter of 20
October 2009 he was informed that it would be for the President or
for the Chamber to decide whether to admit any belated submissions to
the file. The applicant's heirs' representative did not reply to this
letter.
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 heirs' 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's heirs should address their 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's heirs were 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 15 of the principal judgment and point 2 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 heirs' 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
their just satisfaction claims of September 1999, the applicant's
heirs requested 53,600 Cypriot pounds (CYP –
approximately 91,580 euros (EUR)) for pecuniary damage. They relied
on an expert's report assessing the value of their losses which
included the loss of annual rent collected or expected to be
collected from renting out the 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 September 1999. The applicant's heirs did not claim
compensation for any purported expropriation since they were still
the legal owners of the properties. The evaluation report contained a
description of Trypimeni village. The applicant's heirs requested
that any sum awarded by the Court under Article 41 of the Convention
be distributed equally amongst them.
- The
applicant's properties were registered as follows (see paragraph 9
of the principal judgment):
(a) registration
no. 5147, plot no. 20, sheet/plan 13/40, house with two rooms and one
kitchen, one veranda, oven, trees and yard; the applicant alleged
that two extra rooms and one kitchen had been added later; area of
the plot of land: 530 square metres (m²); area of the house: 230
m²;
(b) registration
no. 2597, plot no. 442, sheet/plan 13/40, field with olive trees;
area: 13,713 m².
- In
support of his claim of ownership, the applicant submitted copies of
the original title deeds. It appears from these documents that the
applicant owned five twelfths of the property described above under
paragraph 15 (a) and half of the property described above under
paragraph 15 (b). However, in his observations of September
1999, the applicant's heirs' representative alleged that Mr Yiannis
Kyriakou had had full ownership of the whole of the two plots. He
submitted that from 1921 onwards only the applicant, his wife and his
two children had been living in the house built on plot no. 20. This
house had been the marital home from the time of his wedding and the
applicant had had the absolute and unrestricted use and occupation of
it. Moreover, from August 1928 the applicant had been cultivating and
taking care of the whole of plot no. 442. He had been a farmer who
earned his income from the production of the olive trees. In support
of these statements, the applicant's lawyer produced a certificate
issued by the Trypimeni village committee on 25 September 1999.
The reason why the applicant had not been registered as the owner of
the whole share of the two plots was that the applicant's mother, Mrs
Maria Yianni, had been the owner of two twelfths of plot no. 20.
She had given one twelfth of the plot to the applicant and one
twelfth to his brother, Mr Elias Kyriakou, in the form of an
unregistered gift. The applicant's brother had also been the owner of
the remaining five twelfths of plot no. 20 and of the remaining half
of plot no. 442. In 1956 Mr Elias Kyriakou, who had emigrated to
Australia and had no intention of coming back to Cyprus, had given
all his shares to the applicant. However, no official transfer of
ownership had been entered in the land register. In support of his
version of the facts, the applicant's heirs' lawyer produced an
affidavit from the applicant's son, Mr Andreas Ioannou (see paragraph
10 of the principal judgment).
- The
starting point of the valuation report was the rental value of the
applicant's properties in 1974, calculated on the basis of the rent
obtainable for comparable properties in the area and on a percentage
of their market value. According to the expert, the annual rent which
could have been obtained in 1974 from the applicant's house (whose
open-market value was CYP 5,260 – approximately EUR 8,987) and
field were CYP 264 and CYP 685 respectively, thus the total sum
of CYP 949 (approximately EUR 1,621). 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 1,789) and
in 1999 (CYP 3,212). Compound interest for delayed payment was
applied at a rate of 8% per annum.
- On
28 January 2008, following a request from the Court for an update on
developments in the case, the applicant's heirs submitted that the
market and rental value of their properties had considerably
increased and that it was necessary to upgrade their claims for just
satisfaction. However, despite their lawyer's efforts, it had not
been possible to produce a revised valuation report.
- In
their just satisfaction claims of September 1999, the applicant's
heirs further claimed the total sum of CYP 80,000 (approximately
EUR 136,688) in respect of non-pecuniary damage. They stated
that this sum had been calculated on the basis of the sum awarded by
the Court in the Loizidou v. Turkey 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 Articles 8 and 14 of the Convention.
(b) The Government
- The
Government filed comments on the applicant's heirs' 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. They noted, in
particular, that some applicants had shared properties and that it
was not 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's heirs 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's heirs 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 be possible to envisage, either immediately or after the
resolution of the Cyprus problem, restitution of the property
described in paragraph 15 (a) 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 value) and
increase in value of the property between 1974 and the date of
payment. Had the applicant's heirs applied to the IPC, the latter
would have offered CYP 5,889.2 (approximately EUR 10,062) to
compensate the loss of use and CYP 6,272.7 (approximately EUR 10,717)
for the value of the properties. According to an expert appointed by
the authorities of the “TRNC”, the 1974 open-market value
of the properties described in paragraph 15 above was CYP 1,025
(approximately EUR 1,751). Upon fulfilment of certain
conditions, the IPC could also have offered the applicant's heirs
exchange of their properties with Turkish-Cypriot properties located
in the south of the island.
- In
their comments of 6 October 2009, the Government noted that the
applicant's heirs' claims for just satisfaction were highly excessive
and exorbitant, particularly as they related also to the period after
the applicant's death. The applicant's heirs should submit
information as to the present ownership of the properties and as to
whether any of the properties had changed hands. This information
would be material in deciding the period of entitlement.
- 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.
- After
the delivery of the Court's principal judgment, the Turkish-Cypriot
authorities had invited the applicant's heirs to apply to the IPC in
order to reach an agreement on the matter of compensation. The
applicant's heirs had not replied to this invitation. This attitude
was due mainly 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 amount claimed for non-pecuniary damage
was highly excessive and exorbitant.
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 to the Convention by virtue of the complete denial of
the applicant's rights with respect to his home and the peaceful
enjoyment of his properties in northern Cyprus (see paragraphs 36 and
26 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 and
real estate, the applicant had effectively lost all access and
control as well as all possibilities to use and enjoy his properties
(see paragraph 24 of the principal judgment). His heirs are therefore
entitled to a measure of compensation in respect of losses directly
related to this violation of the applicant's 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 day of the applicant's death,
namely 3 November 1994 (see paragraph 4 of the principal judgment;
see also, 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 applicant's heirs have
not introduced an autonomous claim concerning a potential violation
of the property rights which they might have acquired in their
quality of successors of Mr Yiannis Kyriakou, but have merely
successfully requested to pursue the application lodged by the
deceased (see paragraphs 4, 13 and 14 of the principal judgment and
point 1 of its operative provisions). Under these circumstances, no
alleged pecuniary damage for loss of use can be awarded for the time
which has elapsed after the applicant's demise. It is also to be
noted that the applicant's heirs have failed to submit evidence
showing that they are the current registered owners of the properties
described in paragraph 15 above (see paragraph 7 above); however, as
the Court will assess the pecuniary damage suffered by the applicant
only until 3 November 1994, written proof of the current ownership of
these properties is not strictly necessary.
- In
the opinion of the Court, the valuations furnished by the applicant's
heirs 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 his heirs (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 (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 25-26 above), while the applicant's heirs have not
responded to the Court's request (see paragraph 7 above).
- The
Court further notes that the applicant's heirs 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's
heirs, it finds that the rates applied by them are on the high side
(see, mutatis mutandis, Demades (just satisfaction),
cited above, § 24).
- The
Court further observes that the applicant's heirs have calculated the
loss of rents until September 1999, and not until 3 November
1994, the date of the applicant's death (see paragraphs 29 and 30
above) and that they have assumed that the applicant was the owner of
the whole share of the properties concerned by the principal
judgment. However, the Court cannot overlook the fact that, according
to the original title deeds, the applicant only owned five twelfths
of the property described in paragraph 15 (a) above and half of
the property described in paragraph 15 (b) above. In connection
with this, the Court underlines that it cannot accept, as such, the
alleged donation of the remaining shares made in 1956 by the
applicant's brother, as no official transfer of ownership had been
entered in the land register (see paragraph 10 of the principal
judgment and paragraph 16 above).
- 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,
until his death, to use his properties 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, the Court is of the opinion that
the sums claimed by the applicant's heirs in respect of pecuniary and
non-pecuniary damage (respectively EUR 91,580 and EUR 136,688
– see paragraphs 14 and 19 above) are excessive. At the same
time, the amount which the “TRNC” authorities could have
offered the applicant's heirs in respect of loss of use
(approximately EUR 10,062 – see paragraph 23 above) does
not seem to take due account of the number and nature of the
properties owned by the applicant and listed in paragraph 15 above.
Making its assessment on an equitable basis, the Court decides to
award the applicant's heirs EUR 25,000.
B. Costs and expenses
- In
their just satisfaction claims of September 1999, relying on bills
from their representative, the applicant's heirs sought CYP 2,620
(approximately EUR 4,476) for the costs and expenses incurred before
the Court. This sum included CYP 800 (approximately EUR 1,366) for
the cost of the expert report assessing the value of the properties.
- 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 a valuation report 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).
- In
the light of the above, the Court considers the amount claimed for
costs and expenses for the proceedings before it (EUR 4,476)
reasonable and decides to award it to the applicant's heirs.
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 heirs' claims for just
satisfaction;
- Holds
(a) that
the respondent State is to pay the applicant's heirs, 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
25,000 (twenty-five thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
4,476 (four thousand four hundred and seventy-six euros), plus any
tax that may be chargeable to the applicant's heirs, 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
heirs' 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
