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FIRST
SECTION
CASE OF KOLONA v. CYPRUS
(Application
no. 28025/03)
JUDGMENT
(Merits)
STRASBOURG
27
September 2007
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 Kolona v. Cyprus,
The
European Court of Human Rights (First Section), sitting on
6 September 2007 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated, in private on 6 September 2007,
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28025/03) against the Republic
of Cyprus lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mrs Eleni Kolona (“the
applicant”), on 1 August 2003.
- The
applicant was represented before the Court by Mr A. Demetriades,
a lawyer practising in Nicosia. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
- The applicant
died on 23 December 2004. The
application is being pursued by her husband, Mr C. Pappas, who
is also the administrator of her estate.
- On
4 November 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1926 and at the material time lived in
Limassol. She died on 23 December 2004.
- The
deceased applicant was the owner (half-a-share) of a plot of land
with a house on it in the village of Pelendri in the district of
Limassol. The said house was the applicant's home.
- By
letter dated 22 May 1997 the applicant's lawyer at the time informed
the Minister of Communications and Works that the applicant had found
out, by chance, that the works planned to take place in her village
would entail the compulsory acquisition of her house and its
demolition. He further noted that the authorities had been
misinformed that no one had been living in the house. He emphasised
that the applicant would not consent to the loss of her home and
would challenge any administrative act for its compulsory
acquisition.
- On
25 July 1997 a notice of compulsory acquisition of the applicant's
property was published in the Official Gazette of the Republic of
Cyprus (administrative act no. 908). The compulsory acquisition was
for the purpose of the construction, improvement, alignment and
surfacing of a public road. The notice stated as follows:
“Notification is hereby given that the immovable
property described in the Schedule set out below is essential for the
following purpose of public benefit, namely for the creation and
development of roads in the Republic and its compulsory acquisition
is imperative for the following reasons, namely the construction,
improvement, alignment and surfacing of the road.”
On
the same day a requisition order was issued under the Requisition of
Property Law of 1962 (as amended) and published in the Official
Gazette (no. 930):
“Because the immovable property described in the
Schedule set out below ... is essential for the following purposes of
public benefit, namely for the creation and development of public
roads in the Republic or for any of these purposes and its
requisition is imperative for the following reasons, namely the
construction, improvement, alignment and surfacing of the Pelendri
main road”
The
initial duration of the order was for one year. It was subsequently
extended until 23 July 1999 by publication in the Official Gazette of
12 June 1998 and until 22 July 2000 by publication in the
Official Gazette of 18 June 1999.
- By
letter dated 29 July 1997 the applicant lodged an objection to the
compulsory acquisition and requisition of her property with the
Ministry of Communications and Works.
- The
applicant's objection was dismissed and on 15 May 1998 a compulsory
acquisition order issued under the Compulsory Acquisition Law 1962
(Law 15/1962 as amended) was published in the Official Gazette
(no. 576). The order referred to the earlier notice of
compulsory acquisition.
A. Proceedings concerning
the compulsory acquisition
- On
14 July 1998 the applicant lodged a recourse before the Supreme Court
(first instance administrative jurisdiction) seeking the annulment of
the compulsory acquisition order. She claimed, inter alia,
that the impugned administrative act would result to her forced
displacement from her village and her ancestral roots.
- In
a letter dated 17 February 1999 sent by the Limassol District Officer
to the Director General of the Ministry of Communications and Works,
the former stated that a plot of State land had been found in the
applicant's village and that an exchange had been proposed to the
applicant and her family on the basis of the valuations that would be
carried out by the Land Registry concerning the value of the house
and the plot in question. However, the applicant had demanded,
despite the fact that the Land Registry's valuations had not yet been
completed, that she should be granted two houses on State land of her
preference and that she was not willing to withdraw her recourse
before such houses or land of her preference were granted to her or,
otherwise, before the costs and a period of six months were given to
her for the construction of two new houses. In view of the
circumstances the Limassol District Officer considered that there was
no possibility of reaching a settlement.
- On
13 July 2000 the Supreme Court (first instance administrative
jurisdiction) dismissed the application and upheld the lawfulness of
the compulsory acquisition order.
- On
19 July 2000, whilst the applicant's right of appeal was still in
force, the Public Works Department of the Ministry of Communication
and Works demolished the applicant's house.
- On
7 August 2000 the applicant was offered the sum of 450 Cyprus pounds
(CYP) as annual rent for the period from 25 July 1997 until 25
July 2000 as compensation for the requisition of her property. The
Government submitted that no agreement had been reached between the
applicant and the authorities concerning the compensation.
- On
23 August 2000 the applicant lodged an appeal with the Supreme Court
(revisional administrative jurisdiction) challenging the first
instance judgment and the demolition of her house pending the
expiration of her right to appeal. In her grounds of appeal she
noted, inter alia, that the authorities had not taken
possession of her property until 19 July 2000, namely, the day that
they demolished her house and that following the expiry of the
requisition order on 22 July 2000 no other requisition order had been
issued. She further invoked Article 8 of the Convention.
- In
the context of the appeal proceedings it emerged that, pending the
first instance proceedings, the compulsory acquisition order (no.
930) and the preceding notification (no. 908) had been revoked by an
order published in the Official Gazette of 20 August 1999 (no. 1004)
on the ground, inter
alia, that the acquisition of the
applicant's property had not been necessary for the public benefit
purposes stated in the initial notice of compulsory acquisition.
In particular, the revocation order stated as follows:
“...
Whereas in accordance with the provisions of the
Compulsory Acquisition Law, the compensation for the aforementioned
acquisition was not paid or deposited.
Whereas the Acquiring Authority considers the immovable
property which is described in the Schedule of this order which is
part of the immovable property which is described in notice no. 908
as not required for the public benefit purposes which are referred to
in notice no. 908.
For these reasons, the Minister of Communications and
Works, exercising the powers granted to him by the Council of
Ministers by section 7 of the Compulsory Acquisition Law ... with the
present notification revokes notice no. 908/97 and order no. 567/98
in so far as they concern the immovable property described in the
Schedule of this order”.
Both
the parties and the first instance court had not been aware of this
development at the material time.
- In
a letter dated 6 November 2000 the Land Registry Department of the
Minister of the Interior informed the then Attorney-General that the
compulsory acquisition order of 15 May 1998 had been revoked because
the relevant plans of the Land Registry did not correspond to the
actual situation on the site. Furthermore, following the demolition,
the applicant had refused the authorities' offers for a friendly
settlement and had not replied to the offer made for the period the
property was under the requisition order, i.e. from 25 July 1997
until 25 July 2000. In this connection the Land Registry noted that
the applicant had sent letters of protest on 19 and 20 July 2007 to
the Director of Public Works and the Minister of Interior
respectively. Finally, the Land Registry requested advice with regard
to the steps to be taken. In particular, it asked whether the
Ministry should send an offer for the compulsory acquisition or
whether a new compulsory acquisition order should be issued instead.
- Subsequently,
in a letter dated 1 December 2000, by the Limassol District Engineer
of Public Works to the Director of Public Works of the Ministry of
Communications and Works, the following, inter alia, was
stated:
“...
following your instructions we proceeded with the
immediate demolition of the house on 19 and 20 July 2000 after
repeated telephone conversations with the owner's son ...
Before the demolition process commenced we had a
telephone conversation with the complainant's son and we once again
mentioned the fact that we would proceed with the demolition of the
house.
After this, once the house was opened up in the presence
of the police, the Limassol District Officer, the Community Chairman
and the Community Secretary of Pelendri village, all objects that
were in the house were listed by all the abovementioned which were
subsequently taken to a safe place and we proceeded to demolish the
house”.
- On
18 May 2001 another order of requisition (no. 454) was published in
the Official Gazette. On 19 April 2002 the period of requisition was
extended until 17 May 2003 and then extended again on 3 April 2003
until 16 May 2004.
- In
the meantime, on 30 April 2002 a new notice of compulsory acquisition
of the applicant's property was published in the Official Gazette
(no. 443). Subsequently, on 17 May 2002 an order of compulsory
acquisition (no. 499) was published.
- On
29 May 2002 the applicant was offered the sum of CYP 12,500 as
compensation for the compulsory acquisition of her property. The
Government submitted that no agreement had been reached between the
applicant and the authorities concerning the compensation.
- On 18 February 2003 the Supreme Court dismissed the
appeal (see paragraph 16 above). In particular, it held that the
demolition could not be considered as “damage” connected
to the compulsory acquisition order that had been revoked, since, as
admitted also by the applicant, the demolition had been carried out
after the revocation of that order and whilst the requisition order
was still in force. The court noted that, in accordance with its
jurisprudence, “damage” in this context should be a
direct result of the contested act and not of another cause.
Accordingly, the court concluded that no issue of “damage”
arose and thus no further examination of the validity of the revoked
compulsory acquisition order was justified. The court also pointed
out that timely notification of the revocation, which had been the
Government's responsibility, would have rendered further
consideration of the recourse unnecessary and further, took into
account the fact that the compulsory acquisition order had been
revoked on the ground that the acquisition of
the applicant's property was not necessary for the public benefit
purposes stated in the initial notice of compulsory acquisition.
The Supreme Court granted the costs of the proceedings, both first
instance and appeal, in favour of the applicant.
B. Proceedings concerning
the demolition
- In
the meantime, on 29 September 2002, following the demolition of her
house, the applicant lodged a recourse before the Supreme Court
(first instance administrative jurisdiction) challenging the
lawfulness of the decision and/or order to demolish her house and the
act of demolition. She invoked Articles 8 and 13 of the Convention
and Article 1 of Protocol No. 1 in this respect.
- On
26 March 2002 the Supreme Court dismissed the recourse. The court
held that the act of demolition had not been an executory
administrative act but the implementation of the administrative act
of requisition. Furthermore, the court considered that there had not
been a violation of the applicant's rights under Articles 8 and 13 of
the Convention. In this respect it noted that under Article 23 (3) of
the Constitution limitations to property, by law, were permissible on
certain grounds. In the event of a lawful limitation on property, the
above Article provided for just compensation which was determined, in
the case of disagreement, by the civil courts. The right therefore of
the applicant to compensation for the expropriated property was
safeguarded. Furthermore the court considered that, in the event the
Supreme Court upheld an appeal lodged by the applicant and annulled
the compulsory acquisition order, she would be able to claim
compensation for any damage suffered as a result of the
administrative act under Article 146 (6) of the Constitution.
- On
7 May 2002 the applicant lodged an appeal before the Supreme Court
(revisional administrative jurisdiction) against the first instance
judgment. In her appeal grounds the applicant claimed, inter alia,
that the demolition of her home violated her rights under Article 8
of the Convention and that the Supreme Court, at first instance, had
wrongly omitted to examine Article 1 of Protocol No. 1 and to find a
violation of Article 13 of the Convention.
- On
21 November 2006 the Supreme Court dismissed the appeal and upheld
the first instance judgment. In particular, it held that the
demolition of the applicant's house had not been an executory
administrative act. Furthermore, it considered that it was not
necessary to examine the question whether the demolition came within
the parameters of the requisition order since, even in the case of a
negative reply, the act at issue would be that of unlawful trespass
falling within the ambit of private law and not public law. A remedy
for such an act could be sought only by way of action before the
district court. The Supreme Court held that it did not have
jurisdiction to examine the case further on the basis of Article 146
of the Constitution and it therefore did not examine the remaining
grounds of appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional
provisions
- Article
23 of the Cyprus Constitution provides as follows, in so far as
relevant:
“(1) Every person, alone or jointly
with others, has the right to acquire, own, possess, enjoy or dispose
of any movable or immovable property and has the right to respect for
such a right. The right of the Republic to underground water,
minerals and antiquities is reserved.
(2) No deprivation or restriction or
limitation of any such right shall be made except as provided in
this Article.
(3) Restrictions or limitations which
are absolutely necessary in the interests of public safety or
public health or public morals, or town and country planning or
the development and use of any property for the promotion of the
public benefit or for the protection of the rights of others, may be
imposed by law on the exercise of such a right.
Just compensation shall be promptly paid for any such
restrictions or limitations which materially decrease the economic
value of the property; in case of disagreement, such compensation is
to be determined by a civil court.
(4) Any movable or immovable property or any
right over or interest in any such property may be compulsorily
acquired by the Republic, or by a municipal corporation or by
a commune for educational, religious, charitable or sporting
institutions, bodies or establishments within its competence and only
from the persons belonging to its respective community, or by a
public corporation or a public utility body on which such a right has
been conferred by law and only
(a) for a purpose which is to the public
benefit and shall be specially provided by a general law for
compulsory acquisition which shall be enacted
within a year from the date of the coming into operation of this
Constitution;
(b) when such purpose is established by a
decision of the acquiring authority and made under the
provisions of such law stating clearly the reasons for such
acquisition;
(c) upon payment in cash and in advance of
just and equitable compensation, to be determined in
case of disagreement by a civil court.
5. Any immovable property or any
right over or interest in any such property compulsorily acquired
shall only be used for the purpose for which fit has been acquired.
If within three years of the acquisition such purpose has not been
attained, the acquiring authority shall, immediately after the
expiration of the said period of three years, offer the property at
the price it has been acquired to the person from whom it has been
acquired. Such person shall be entitled within three months of the
receipt of such offer to signify his acceptance or nonacceptance
of the offer, and if he signifies acceptance, such property shall be
returned to him immediately after his returning such price within a
further period of three months from such acceptance.
...
8. Any movable or immovable property may be
requisitioned by the Republic or by a Communal Chamber for the
purposes of the educational, religious,, charitable or sporting
institutions, bodies or establishments within its competence and only
where the owner and the person entitled to possession of such
property belong to the respective Community, and only
(a) for a purpose which is to the public benefit and
shall be specially provided by a general law for requisitioning which
shall be enacted within a year from the date of the coming into
operation of this Constitution; and
(b) when such purpose is established by a decision of
the requisitioning authority and made under the provisions of such
law stating clearly the reasons for such requisitioning; and
(c) for a period not exceeding three years; and
(d) upon the prompt payment in cash of a just and
equitable compensation to be determined in case of disagreement by a
civil court.
...
11. Any interested person shall have the right of
recourse to the court in respect of or under any of the provisions of
this Article, and such recourse shall act as a stay of proceedings
for the compulsory acquisition; and in case of any restriction or
limitation imposed under paragraph 3 of this Article, the court shall
have power to order stay of any proceedings in respect thereof.
Any decision of the court under this paragraph shall be
subject to appeal.”
- Article 146 of the Cyprus Constitution provides as
follows, in so far as relevant:
“1. The Supreme
Constitutional Court shall have exclusive jurisdiction to adjudicate
finally on a recourse made to it on a complaint that a decision, an
act or omission of any organ, authority or person, exercising any
executive or administrative authority is contrary to any of the
provisions of this Constitution or of any law or is made in excess or
in abuse of powers vested in such organ or authority or person.
...
4. Upon such a recourse the Court
may, by its decision-
(a) confirm, either in whole or in part, such decision
or act or omission; or
(b) declare, either in whole or in part, such decision
or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in
part, ought not to have been made and that whatever has been omitted
should have been performed.
5. Any decision given under paragraph 4 of this Article
shall be binding on all courts and all organs or authorities in the
Republic and shall be given effect to and acted upon by the organ or
authority or person concerned.
6. Any person aggrieved by any decision or act declared
to be void under paragraph 4 of this Article or by any omission
declared thereunder that it ought not to have been made shall be
entitled, if his claim is not met to his satisfaction by the organ,
authority or person concerned, to institute legal proceedings in a
court for the recovery of damages or for being granted other remedy
and to recover just and equitable damages to be assessed by the court
or to be granted such other just and equitable remedy as such court
is empowered to grant.”
B. The Compulsory
Acquisition Law of 1962 (Law 15/62 as amended)
- Section
4 of the Compulsory Acquisition Law of 1962 (Law 15/162, as amended)
provides as follows:
“Where any property is required to be compulsorily
acquired for the purpose of a public benefit, the acquiring authority
shall cause a notice of the intended acquisition in the form set out
in the Schedule hereto ... to be published in the official Gazette of
the Republic, containing a description of the property intended to be
acquired, stating clearly the purpose for which it is required and
the reasons for the acquisition, and calling upon any person
interested in such property to submit to such authority within a
specified time, being not less than two weeks from the date of the
publication thereof, any objection which he may wish to raise to such
acquisition ...”
- Under
section 8 (1) of the above law, the acquiring authority must within
fourteen months from the publication of the notice of acquisition
enter into negotiations for the acquisition of the property referred
to in the notice through private agreement and the agreed
determination of the compensation as well as its apportionment
between all interested persons. If agreement is not reached within
the period of time referred to above, the acquiring authority is
obliged to make a direct offer of the compensation assessed by it.
- Under
section 9 of the same law, without prejudice to the provisions of
section 8 above, if up to the publication of the acquisition order no
agreement has been reached as provided by section 8, the acquiring
authority or any interested person may by application ask the Court
to determine the compensation to be paid for the acquisition as well
as, when this is required, the apportionment of such compensation
between the persons interested therein. The purpose of this type of
proceedings is the determination of such compensation (Lina
Neocleous v. The Attorney-General of Cyprus, Supreme Court
judgment of 31 May 1992). Sections 10 and 11 of the above Law
set out the rules governing the assessment and grant of the
compensation.
C. The Requisition of
Property Law of 1962 (Law 21/62, as amended)
- Under
section 3 of the Requisition of Property Law of 1962 (Law 21/62, as
amended), in accordance with the provisions of the Constitution and
the provisions of this Law, property may be requisitioned for public
benefit purposes.
- In
so far as the duration of a requisition order is concerned, section
4 (3) of the above Law, provides as follows:
“The requisition order shall be in force for a
period or periods not exceeding three years in total, specified in
such order or, if nothing is provided there for, until three years
have elapsed from the commencement of the coming into force of the
requisition.
Provided that at any time during the period the
requisition order is in force, the requisitioning authority may by an
order published in the official gazette of the Republic -
(a) revoke the requisition order or,
(b) extend the period of time specified in the
requisition order for a further period or periods, not exceeding the
three years from the date on which the requisition order first came
into force, as the requisitioning authority may deem necessary”.
- Under
sections 6 and 7 of the Requisition of Property Law, the
requisitioning authority acquires a right to gain possession of the
property to enable it to execute the works necessary for achieving
the purpose specified in the order during the period that the
requisition order was in force. In particular, section 6 (1) provides
as follows:
“When by virtue of article 4 a requisition order
is issued, possession of such property may be acquired by the
requisitioning authority on the date specified by the said order as
the date of commencement of the coming into force of the order or any
later time, and be retained until the validity of such order is
terminated as provided by this law”.
- Sections
8 to 13 of this Law set out the rules governing the assessment and
grant of the compensation to be awarded in respect of requisition of
property. In particular, the relevant provisions of section 8 provide
as follows:
“8 (1) The compensation payable with reference to
the requisition of immovable property by virtue of the provisions of
this law consists of the following amounts, namely –
...
(c) an amount equal to any diminution in the value of
such property which may have resulted from the presence in or on such
property, of any building or other construction, work or building of
an annex, built or constructed or annexed by the requisitioning
authority, or from any damage caused to such property during the
period in which possession was retained by virtue of the requisition
order, not taking into consideration natural wear and tear or any
damage made good by the requisitioning authority.
...
(e) an amount equal to the reasonable expenditure
incurred, other than on the part of the requisitioning authority, for
the purpose of complying with the requisition order.
Provided that
...
(ii) an amount is not paid by virtue of paragraph (c)
with reference to damage to immovable property, greater than the
value of such property at the time when possession of it was acquired
by virtue of the requisition order, not taking into consideration any
increase in the value of the property resulting from the special
circumstances under which the requisition of the said property was
rendered necessary.
...
(4) Compensation due by virtue of paragraph (c) of
section (1) is rendered claimable at the end of the period in which
possession of the property was retained by virtue of the requisition
order and is paid to the person who was the owner of the property at
the time (such term also includes the person who is entitled to be
registered as the owner of the property).
...”.
- Under
section 10 the requisitioning authority ought, at the earliest
possible time from which the compensation for the requisition became
claimable, enter into negotiations for the agreed determination and
apportionment thereof among the interested parties. Section 11 states
that if within three months from the date when the compensation
became claimable no agreement is reached as provided by section 10
or, although the aforesaid period of three months has not elapsed, it
is not foreseen that an agreement will be reached in the
circumstances, the requisitioning authority or any interested party
may ask the Court to proceed to the determination of such
compensation or, where this is required, to the apportionment thereof
among those interested therein.
D. Relevant domestic
case-law
- In
its judgment in the case of Athinoulla Tamasiou v. the Republic
(judgment of 28 March 1991 in recourse 1133/90) the Supreme Court
held, inter alia, the following:
“Requisition is an exceptional temporary measure.
It is the temporary deprivation of possession, use and enjoyment of
property.
Compulsory acquisition is a permanent measure of
deprivation of property for the purposes specified in the
Constitution and in accordance with the procedure provided for in the
relevant legislation.
The limitation of the period of requisition to three
years does not exclude the attainment of a public benefit purpose of
much longer and even permanent duration. Commencement of the process
for the compulsory acquisition of property, usually follows, or
precedes the requisition, which is a temporary measure. When the
process of acquisition and transfer of ownership is not complete but
it is necessary to commence the execution of works for the public
benefit, depending on the circumstances of the case, the property can
be legally requisitioned for commencement of the works. In the event
that the process of acquisition does not come through, payment of
compensation is provided for both under paragraph 8 of Article 23 of
the Constitution and section 8 of the Law, for anything done during
the period of requisition under the requisition order, including the
reinstatement of the property to its original state (status quo).
Works for improvement of roads do not affect the
lawfulness of the requisition and are made for the purpose for which
the requisition order was issued”.
- In
the above case the applicant in question had filed a recourse against
the works that the authorities had commenced on her property on the
basis of a requisition order which had been issued on the same day of
the notice of compulsory acquisition. Her house had not been
affected; only the outside part of the shops on the land had been
affected without, however, any effect on their operation. Her
recourse was dismissed on the basis that the acts she complained
about did not constitute executory administrative acts.
- Furthermore,
in the case of Republic of Cyprus v. N. Pantelides and Others
(judgment of 5 October 1993 in appeal 1487, 1993 3 A.D.D. 456) a
requisition order had been issued in respect of part of the
respondents' property. They then filed a recourse against that order
and also applied for an interim order to suspend the execution of the
order until the recourse was decided. The authorities had submitted
that a notice of compulsory acquisition was going to be issued in the
Official Gazette of the Republic. At first instance the Supreme Court
found that the requisition order was unlawful and granted the
application for the interim order. On appeal the Supreme Court set
aside the first instance judgment and annulled the interim order. The
Supreme Court, held, inter alia, that in accordance with the
domestic jurisprudence the authority to issue a requisition order was
independent of the authority to issue a compulsory acquisition order
and, that the latter, was not a prerequisite for a requisition order,
even if the nature of the works to be executed during the period of
requisition for attaining its aim were of a permanent nature. In such
a case an acquisition order would be issued to provide a legal basis
for the works. The fact that a requisition order could only remain in
force for a maximum period of three years did not exclude the
carrying out of works within that period for the achievement of the
purpose to the public benefit of a much longer or permanent duration.
5. The Civil Wrongs Law
(Cap. 148)
- The
law of tort provides, inter alia, for actions claiming damages
in respect of trespass to land. Under section 43 of the Civil Wrongs
Law (Cap. 148) unlawful trespass to immovable property consists
of any unlawful entry on, or unlawful damage to or unlawful
interference with any such property by any person. Under this section
trespass is actionable per se (see, amongst other authorities,
Adrian Holdings Ltd v. Republic of Cyprus, Civil Appeal 9486,
Supreme Court judgment of 14 October 1998 and Papakokkinou v.
Theodosiou (1991) 1 CLR 379, at p. 384).
THE LAW
- The
applicant complained under Article 8 of the Convention and Article
1 of Protocol No. 1 of a violation of her right to respect for
her home and to peaceful enjoyment of her possessions. Invoking both
provisions the applicant complained of the following:
(a)
although the compulsory acquisition order concerning her property had
been retroactively revoked, this had only been brought to her
attention during the appeal proceedings. As a result, from 15 May
1998 until 20 August 1999 she could not deal with her property
on the market or otherwise. Notwithstanding no compensation had been
offered to her in this respect;
(b)
her house had been demolished unlawfully whilst the proceedings
concerning the compulsory acquisition order of 15 May 1998 were still
pending, and despite the fact that this order had been revoked
without her or the Supreme Court's knowledge. Furthermore, the
authorities had failed to grant her any compensation for this loss.
I. ADMISSIBILITY OF THE APPLICATION
A. The applicant's first complaint concerning
compensation
- The
Court notes that on 7 August 2000 the authorities offered the
applicant compensation in the form of annual rent for the three-year
period for which the requisition order was in force (see paragraph 15
above), namely from 25 July 1997 until 2 July 2000. This period
therefore covered the time for which the property was also under the
compulsory acquisition order. Consequently, the applicant cannot
claim that she was not offered any compensation for this period.
Furthermore, the applicant has not substantiated that she suffered
any actual damage or loss during the above period.
- It follows that this complaint is inadmissible under
Article 35 § 3 of the Convention as being manifestly
ill-founded, pursuant to Article 35 § 4.
B. The applicant's second complaint concerning the
demolition of her house
1. Submissions of the parties
(a) The Government
- The
Government submitted that the applicant had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention. The
Government firstly pointed out that the applicant had not challenged
the requisition order by way of administrative recourse under Article
146 of the Constitution but had only challenged the compulsory
acquisition order. They argued that in the context of a recourse
against the requisition she could have raised and argued the issues
under Article 8 of the Convention and Article 1 of Protocol No. 1 and
filed an application for a suspension of the order of requisition
pending the final outcome of the recourse in order to prevent the
execution of works and demolition of her house until final
determination of the recourse at first instance and on appeal. She
had not taken any of these steps, however, although she had known
that her house had been requisitioned and would be demolished.
- In
connection to the above they noted that although the applicant
remained the owner of the property in question, under domestic law
the requisition order entitled the authorities to gain immediate
possession of the property and carry out all the necessary works for
the execution of that order. This included the demolition of the
house without waiting for the completion of the process of
acquisition and transfer of ownership to the Government. The house
could not have been demolished under the acquisition order since such
an order per se did not transfer ownership and did not give
rise to rights of possession. It was also clear under domestic law
that the two orders were independent and that the revocation of the
compulsory acquisition order did not affect the validity of the
requisition order and the rights it granted to the requisitioning
authority (relying on Athinoulla Tamasiou v. the Republic,
judgment of 28 March 1991, in Recourse 1133/90 and the Republic of
Cyprus v. N. Pantelides and Others, judgment of 5 October
1993 in Appeal 1487, 1993 3 A.D.D. 456). Therefore, even if the
Supreme Court had annulled the acquisition order this would not have
affected the validity of the requisition order and the authorities'
rights under that order to enter the property and execute the
required works, including demolition.
- Secondly,
the Government submitted that the applicant had failed to seek an
interim order restraining the demolition of her house pending the
final outcome of her recourse challenging the validity of the
compulsory acquisition order and also, to raise her complaints under
Article 8 of the Convention and Article 1 of Protocol No. 1
before the Supreme Court in that recourse. She had only raised her
complaints under the above provisions after her house had been
demolished, at the appeal stage, and in her recourse challenging the
demolition.
- In
relation to the above, the Government emphasised that the applicant
had known from the beginning, when the procedures of requisition and
compulsory acquisition had been set in motion, that the demolition of
her house had been necessary in order to carry out the public benefit
purpose specified in the order of requisition and in the notice and
order of acquisition. This had been evident from the letters dated 22
May 1997 and 29 July 1997 she had sent to the Minister of
Communications and Works and from the letter dated 1 December 2000
sent by the Limassol District Engineer to the Director of the
Department of Public works.
- Finally,
the Government noted that the applicant had been offered compensation
by the authorities for both the requisition and the compulsory
acquisition of her property. Since she had not reached an agreement
with the authorities in this respect she had a right to apply to the
civil courts for the determination of the amount of compensation in
accordance with the Requisition of Property Laws of 1962-1998 and the
Compulsory Acquisition Law of 1962. In cases such as the instant one
in which damage had been caused to property during the requisition
period, under section 8 (1) (c) of the Requisition Laws, the
amount of compensation had to be equal to the amount of diminution in
the value of the property owning to the damage caused to it, provided
however that this did not exceed the value the property had at the
time of gaining possession of it under the order. The applicant could
have sought compensation for the diminution in the value of her
property owing to the demolition of her house, which might be equal
but not exceed the property's value at the date of demolition.
(b) The applicant
- The
applicant contested the Government's submissions. Firstly, she
submitted that although she had not challenged the requisition order,
her home could not have been lawfully demolished on the basis of that
order, which constitute a measure of temporary nature. This had been
admitted by the Government in their observations. Furthermore, the
demolition had taken place while the judicial review of the
compulsory acquisition had been under way, namely pending her appeal
before the Supreme Court. Even Article 23 (11) of the Constitution
provided for the suspension of such a procedure pending the
determination of a recourse before the Supreme Court. The applicant
maintained that it had not been possible for her to anticipate the
demolition of her house when she had been in the process of
challenging the validity of the order which was the only legal basis
for carrying out irreversible changes to one's property. Moreover,
the compulsory acquisition order had been revoked and had not
therefore been in effect on the day the demolition of her house. The
Government had failed to notify both the Supreme Court and the
applicant of the revocation. The Government had not provided any
explanations in this connection.
- In
addition the applicant submitted that she had never been notified
about the intended demolition and could not therefore have challenged
it before it occurred. This was clear from the letters referred to in
the Government's submissions; the letters by the applicant and her
lawyer dated 1997 to the Ministry merely concerned the purported
compulsory acquisition whilst the latter letter was between two
Government departments claiming that the applicant's son knew of the
intended demolition.
- Finally,
the applicant pointed out that apart from challenging the compulsory
acquisition of her house she had also challenged its demolition. Her
recourse, however, had been dismissed by the Supreme Court both at
first instance and on appeal. The Supreme Court had failed to rule on
the applicant's complaints under Articles 8 of the Convention and 1
of Protocol No. 1. As a result she had been unable to challenge the
lawfulness of the demolition of her house.
2. The Court's assessment
- The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system before turning to the Court. The rule is based on the
assumption that the domestic system provides an effective remedy in
respect of the alleged breach. While in the context of machinery for
the protection of human rights the rule of exhaustion of domestic
remedies must be applied with some degree of flexibility and without
excessive formalism, it does not require merely that applications
should be made to the appropriate domestic courts and that use should
be made of remedies designed to challenge impugned decisions which
allegedly violate a Convention right. It normally requires also that
the complaints intended to be made subsequently at the international
level should have been aired before those same courts, at
least in substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see, among many other
authorities, Fressoz and Roire v. France [GC], no.
29183/95, § 37, ECHR 1999-I). In reviewing whether the rule had
been observed it is essential to have regard to the particular
circumstances of each individual case (see Akdivar and Others
v. Turkey, judgment of 16 September 1996, Reports of
Judgments and Decisions 1996–IV, p. 1210-11, §§ 65-69).
- The
Court notes that the Government primarily rely on the fact that the
applicant did not
-file
an administrative recourse against the requisition order and, in the
context of such proceedings filed an application for a suspension of
that order to prevent the authorities from demolishing her house;
-file
an application during the acquisition proceedings for an order to
prevent the demolition pending the final outcome of her recourse;
-raise
her complaints before the Supreme Court during the compulsory
acquisition proceedings at first instance but only on appeal; and
-apply
to the civil courts for the determination of the amount of
compensation offered for the requisition of her property and in
respect of the new compulsory acquisition procedure.
The
Court will therefore proceed to examine the above in order to decide
whether the Government's plea is well-founded.
- The
Court firstly notes that the Government have emphasised that the
applicant should have challenged the lawfulness of the requisition
order of 25 July 1997 and applied for an interim order to suspend
that order. The Court, however, is not convinced by the Government's
arguments that such a recourse would have been effective in the
particular circumstances of the instant case. In this connection, the
Court notes that it is clear from the facts that the applicant
considered that the demolition of her house would take place on the
basis of the compulsory acquisition of the property, which was the
permanent measure which would lead to deprivation of her property and
transfer of title to the authorities. The applicant was informed that
this order had been revoked only after the authorities demolished her
house during the appeal proceedings (see paragraph 17 above). By that
stage the applicant could not pursue a recourse against the
compulsory acquisition order or lodge a recourse against the
requisition order.
- Moreover,
the Government have not established that the applicant was given
effective notification of the intended demolition of her house. The
Government have not submitted any information on the procedure
followed with regard to the demolition, whether any order was issued
in this respect and whether the applicant was given actual notice of
the date of the intended demolition. The Court
considers that letters relied on by the Government (see paragraphs 7,
9 and 18 above) are not in any way sufficient in this respect.
- In
view of the above, the applicant had no apparent reason to challenge
the requisition order and apply for an interim order. In any event,
given the findings of the Supreme Court as to the lawfulness of the
acquisition order, the Court is not convinced of the effectiveness of
a recourse against the requisition order especially bearing in mind
that it had been issued on the same day as the notice for compulsory
acquisition and for the same purposes as the compulsory acquisition
(see paragraphs 8 and 10).
- As
regards the Government's second point that the applicant should have
made an application during the acquisition proceedings to prevent the
demolition of her house, the Court notes that they have not shown
that the applicant should have made such an application or that such
an application would have been effective in any way. As they submit,
the authorities could not have demolished the house on the basis of
the acquisition order since such an order did not authorise them to
gain possession of the property for the execution of any works (see
paragraph 46 above). In any event, as found above, the applicant was
not given effective notification of the intended demolition of her
property (see paragraph 56 above).
- Regarding
the Government's third point, the Court notes that the
demolition of the applicant's house occurred just after the first
instance judgment was delivered in the acquisition proceedings within
the appeal period (see paragraph 14 above). It was therefore added as
a new element to the appeal proceedings. The applicant then proceeded
to appeal challenging the acquisition order and raising the issue of
demolition since, at that stage, she had considered that the
demolition had taken place on the basis of that order. It was only
during the appeal proceedings that the applicant and the Supreme
Court were informed that this order had in fact been revoked in
August 1999, during the first instance proceedings (see paragraph
17 above).
- Concerning
the Government's last argument that the applicant should have applied
to the civil courts for the determination of the amount of
compensation offered (see paragraphs 49 and 54 above), the Court
notes that although compensation was offered to the applicant in
respect of the requisition of her property after the demolition of
the house, this was only in respect of annual rents and not for
damages suffered by the applicant due to the demolition. In this
respect, the Court observes that the Government merely refer to
section 8 (1) (e) of the Requisition Law (see paragraphs 36 and
49 above) without making reference to specific, established domestic
case-law illustrating the application of this provision by the civil
courts and the real possibility of obtaining compensation in the
context of such a procedure in respect of the demolition of her
house. The judgments of the Supreme Court in the applicant's case are
not of any help on this point. As regards the Government's argument
that the applicant should have recourse to the civil courts in
respect of the compensation offered for the new compulsory
acquisition proceedings, the Court notes that the applicant does not
complain about this new procedure before this Court.
- Finally,
the Court observes that despite the Supreme Court's finding in its
judgment of 21 November 2006 concerning a possible remedy by way of
an action for unlawful trespass (see paragraph 27 above), this was
not at any point raised by the Government in their pleadings before
the Court. Therefore, in line with its case-law on the matter, the
Court cannot examine this issue ex officio (see, inter
alia, De Jong, Baljet and Van den Brink v.
the Netherlands, judgment of 22 May 1984, Series A no. 77,
p. 18, § 36; Foti and Others v. Italy,
judgment of 10 December 1982, Series A no. 56, p. 17,
§ 48 and Deweer v. Belgium, judgment of 27
February 1980, Series A no. 35, p. 15, § 26).
In this respect, the Court reiterates that it is not for the
Convention bodies to cure of their own motion any shortcomings or
lack of precision in the respondent Government's arguments (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment
of 9 December 1994, Series A no. 301 B, p. 77, §
35).
- Accordingly,
the Court concludes that, given the lack of convincing arguments by
the Government as to the “effectiveness” and “adequacy”
of the remedies they relied on and in light of all the above
considerations, this complaint cannot be rejected for failure to
exhaust domestic remedies. The Court thus dismisses the Government's
plea in this respect. It further notes that this part of the
application is not inadmissible on any other grounds. It must
therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained about the lawfulness of the demolition of her
house and the authorities' failure to grant her any compensation for
this loss. She relied on Article 1 of Protocol No. 1, which reads as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
1. Submissions of the
parties
(a) The applicant
- The
applicant argued that the demolition of her house violated her rights
under 1 of Protocol No. 1. In particular, the applicant
contested the lawfulness of the demolition. She emphasised that the
demolition could not have been carried out on the basis of a
requisition order which was a temporary measure and could not bring
about irreparable results. Under domestic law permanent changes to
property could only be made through the compulsory acquisition
process. The case-law cited by the Government in support of their
arguments was not applicable to the facts of the present case. Yet,
in her case, the compulsory acquisition order had already been
revoked when the demolition took place. Even if one could argue that
a building could be demolished on the basis of a requisition order
which constituted a temporary measure this could not apply to a
person's home. In the applicant's view having temporary possession of
one's home under a three year requisition order as claimed by the
Government could not give licence to the authorities to demolish that
home.
- Furthermore,
the authorities had failed, firstly, to inform the applicant and the
Supreme Court of the revocation of the compulsory acquisition order
and secondly, to notify the applicant of the intended demolition.
This was clear from the Government's submissions before the Court.
The Government had not provided any explanations concerning the
revocation and why the Supreme Court and the applicant had not been
duly informed.
- Finally,
the applicant submitted that no compensation had been given to her in
this respect.
(b) The Government
- The
Government submitted that the demolition of the applicant's house had
taken place under the requisition order which had been in force at
the material time. In this connection they repeated that under the
requisition order the authorities could gain immediate possession of
the property and conduct all the necessary works for the execution of
that order without waiting for the completion of the process of
acquisition and transfer of ownership to the Government. This
included the demolition of the house under the requisition order
which was independent to the compulsory (relying on the Supreme
Court's judgments in the cases of Athinoulla Tamasiou v.
the Republic and the Republic of Cyprus v. N.
Pantelides and Others, cited in above). In this respect they
referred to their submissions concerning their plea of non-exhaustion
of domestic remedies (see paragraph 46 above).
- The
requisition of the property in question had been made in the public
interest and had been prescribed by and had been in accordance with
domestic law. The revocation of the compulsory acquisition order had
not therefore affected the requisition order or the execution of its
works under its authority. The public benefit purpose for which the
compulsory acquisition order had been made had never been abandoned
and following revocation of the acquisition order on expiry of the
period of requisition, the process of requisition and compulsory
acquisition of the same property for the same public benefit purpose
had commenced anew and would result in compensation for the
requisition and compulsory acquisition in accordance with the
applicable laws. Accordingly, the Government considered that there
had been no violation of the applicant's rights under Article 1 of
Protocol No. 1 by reason of the demolition following revocation of
the acquisition order pending the proceedings challenging that order
or by reason of the fact that the applicant and the Supreme Court had
not been informed of the revocation until the appeal hearing in those
proceedings.
2. The Court's assessment
- The
Court reiterates that Article 1 of Protocol No. 1, which guarantees
the right to the protection of property, contains three distinct
rules: “the first rule, set out in the first sentence of the
first paragraph, is of a general nature and enunciates the principle
of the peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest... The three rules
are not, however, 'distinct' in the sense of being unconnected. The
second and third rules are concerned with particular instances of
interference with the right to peaceful enjoyment of property and
should therefore be construed in the light of the general principle
enunciated in the first rule” (see, among other
authorities, Anheuser-Busch Inc. v. Portugal [GC], no.
73049/01, § 62, 11 January 2007).
- The
Court notes that at the time the events in question took place, the
applicant was the owner of the property. In view of this, the Court
finds that the demolition of her house deprived the applicant of her
possessions within the meaning of the second sentence of the first
paragraph of Article 1 of Protocol No. 1.
- The
Court must therefore now determine whether this deprivation was
justified in accordance with the requirements of that provision. In
this connection it reiterates that the first and most important
requirement of Article 1 of Protocol No. 1 is that any interference
by a public authority with the peaceful enjoyment of possessions
should be lawful: the second sentence of the first paragraph
authorises a deprivation of possessions only “subject to the
conditions provided for by law” and the second paragraph
recognises that the States have the right to control the use of
property by enforcing “laws”. Moreover, the rule of law,
one of the fundamental principles of a democratic society, is
inherent in all the Articles of the Convention (see the Amuur v.
France judgment of 25 June 1996, Reports 1996-III, pp.
850-51, § 50).
- In
the instant case the lawfulness of the demolition is being disputed
by the parties. On the one hand, the Government submit that the
demolition had taken place on the basis of the requisition order of
25 July 1997 for the purpose specified therein. On the other hand,
the applicant submits that the demolition could not be carried out on
the basis of a requisition order which was a temporary measure,
especially when there was no compulsory acquisition order in force.
- The
Court notes that although the compulsory acquisition and restitution
orders constituted independent administrative acts, in the Court's
opinion, in the present case, they were clearly and inseparably
linked to each other. Both the requisition order and the notice of
compulsory acquisition were issued on the same day for the same
public benefit purpose (see paragraph 8 above). It is also clear
that, in domestic law, compulsory acquisition is a permanent measure
of deprivation of property in contrast to requisition which is a
temporary deprivation of possession, use and enjoyment of property
with a maximum time span of three years. However, the authorities
proceeded to demolish the applicant's house, not only within the
period in which the applicant still had the right to appeal against
the first instance judgment on the compulsory acquisition order, but
also after that order had been revoked. In this connection, the Court
notes that the revocation order clearly stated that the property was
not required anymore for the public benefit purpose for which the
acquisition notice and order had been issued (see paragraph 17
above). The Court is not convinced therefore by the Government's
arguments that the demolition of the applicant's house could have
taken place on the basis of the temporary requisition order,
particularly in the light of the revocation of the compulsory
acquisition order and, bearing in mind, the permanent nature of the
effects of such a measure and its economic impact. In reaching this
conclusion the Court has also taken into account the following
factors:
-in
spite of the requisition order, it appears that the authorities did
not take possession of the applicant's property and take any steps to
commence works under that order up until three days before the expiry
of the requisition order when they demolished the applicant's house
(see paragraphs 14 and 16 above);
-following
the expiry of the requisition order a new order was only issued
approximately ten months later (see paragraphs 8 and 20 above).
Furthermore, following the abandonment of the first acquisition
procedure it took the authorities about two years and eight months to
issue a new compulsory acquisition notice and restart the new
procedure (see paragraphs 17 and 21 above). Therefore, not only was
there no compulsory acquisition order when the house was demolished
but a new order was not issued until one year and ten months
afterwards. Consequently, following the demolition of the house there
was a period of at least ten months during which there was no
requisition or acquisition order concerning the applicant's property.
- The
Court cannot find any legal justification in the cases relied on by
the Government (see paragraphs 38-40, 46 and 67 above) for the
authorities' actions.
- Moreover
as noted above the applicant was not given effective notification of
the intended demolition of her property (see paragraph 56 above).
- Finally,
the Court notes the applicant has not been offered or granted any
compensation for the demolition of her house despite the duty of the
authorities both under the Constitution (see in particular Articles
23 (3) and 23 (8) (d); paragraph 28 above) and the Requisition Law
(section 11, paragraph 37 above) to offer and promptly pay
compensation. The Government have not provided any explanations at
all in this regard. Although it appears from the letter of 6 November
2000 from the Limassol District Officer to the Attorney-General that
following the demolition the authorities made some efforts in order
to reach a friendly settlement (see paragraph 18 above), no details
have been given by the Government in this respect; they have not
submitted evidence of any meaningful offers of compensation made by
the authorities to the applicant concerning the demolition of her
house.
- In
view of all the above, the Court finds that the interference with the
applicant's rights under Article 1 of Protocol No. 1 was arbitrary
and, consequently, is not compatible with that provision. This
conclusion makes it unnecessary to ascertain whether a fair balance
has been struck between the demands of the general interest of the
community and the requirements of the protection of the individual's
fundamental rights.
- There
has, accordingly, been a breach of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the demolition of her home had also
violated her right to respect for her home under Article 8 of the
Convention. This provision
reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
parties submitted the same arguments as advanced with regard to
Article 1 of Protocol No. 1 (see paragraphs 64-68 above).
- The
Court notes that the house in question was the applicant's home
within the meaning of Article 8 of the Convention. The Government
have not contested this in their submissions before the Court. The
demolition therefore of her house constituted an interference with
her right to respect for her home under Article 8.
- The
Court has found above that the demolition of the applicant's home was
arbitrary and did not therefore meet the requirement of “lawfulness”
under Article 1 of Protocol No. 1 (see paragraphs 77 and 78 above).
- For
the same reasons, the Court finds that there has been a violation of
Article 8 of the Convention by reason of the denial of the right of
the applicant to respect for her home.
IV. 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. The submissions of the parties
1. The applicant
- The
applicant claimed CYP 91,000 in respect of pecuniary damage. Relying
on an expert valuation report dated 16 May 2006, she submitted that
the above amount represented the value of her share in the property
on the above date had her house not been demolished. According to the
valuation report the applicant's house, which had been in a
residential planning zone, had been two-storey and covered an area of
approximately 145 square meters. It had an uncovered veranda with an
additional area of 45 square meters and a garden with a parking place
covering an area of 25 square meters.
- The
applicant further claimed CYP 45,000 by way of compensation for
non-pecuniary damage for the stress and suffering which the
compulsory acquisition and demolition of her home had caused her. In
this connection, the applicant requested that the Court taken into
account both the Government's insensitivity in handling the matter
and the unlawful nature of their actions.
- Finally,
with regard to costs and expenses, the applicant claimed CYP 3958.30
inclusive of VAT for those incurred before the Court. This sum
included the amount of CYP 460 for the fees paid in respect of the
valuation report. The applicant submitted bills of costs and a
receipt concerning the valuation fees.
2. The Government
- The
Government contested the applicant's claims concerning pecuniary and
non-pecuniary damage. With regard to the applicant's claim as to
pecuniary damage they submitted that the amount sought by the
applicant corresponded to the market value of the house in May 2006
whereas under domestic law the courts assessed the market value and
the diminution in the value of the property by reference to the time
of publication of the notice of acquisition and of gaining
possession. In this connection, they re-emphasised that compensation
could be sought under the Requisition and Compulsory Acquisition Laws
(see paragraphs 32, 36 and 49 above). As regards to the
applicant's claim for non-pecuniary damage, the Government were of
the opinion that the finding of a violation would constitute in
itself sufficient just satisfaction.
- Finally,
the Government submitted that the costs were connected to the
applicant's attempts to prevent or obtain redress in respect of her
complaints concerning a violation of the Convention and were they
were therefore recoverable as long as the Court was satisfied that
they were actually, necessarily incurred and reasonable as to the
quantum.
B. The Court's decision
- The
Court reiterates that it has found a violation of Article 8 of the
Convention and Article 1 of Protocol No. 1 by reason of the
demolition of the applicant's house. The loss at issue therefore is
that of the value of the demolished house.
- Having
regard to the information in its possession, the Court considers that
the question of the application of Article 41 is not ready for
decision. It is therefore necessary to reserve
the matter in its entirety, due regard being had to the
possibility of an agreement between the respondent Government and the
applicant (Rule 75 §§ 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant's complaint under Article
8 of the Convention and Article 1 of Protocol No. 1 concerning the
demolition of her house admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that the question of the application of
Article 41 is not ready for decision:
accordingly,
(a) reserves the said question in whole;
(b) invites the Government and the applicant to
submit, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, their written observations on the matter and, in
particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 27 September 2007
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
