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FOURTH
SECTION
CASE OF HADJIPROCOPIOU AND OTHERS v. TURKEY
(Application
no. 37395/97)
JUDGMENT
(merits)
STRASBOURG
22
September 2009
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 Hadjiprocopiou and Others v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Işıl Karakaş, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37395/97) 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 three Cypriot nationals, Mr Costas
Hadjiprocopiou, Mrs Elli Hadjiprocopiou and Mrs Maria
Hadjiprocopiou-Iacovidou (“the applicants”), on 22 July
1997.
- The
applicants were represented by Mr A. Demetriades and Mrs Vicky
Loizides, two lawyers practising in Nicosia. The Turkish Government
(“the Government”) were represented by their Agent,
Mr Z.M. Necatigil.
- The
applicants alleged that the Turkish occupation of the northern part
of Cyprus had deprived them of their home and properties.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
a decision of 8 June 1999 the Court declared the application
admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, which had exercised its right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)).
THE FACTS
- The
first and second applicants, a married couple, were born in 1916 and
1928 respectively and live in Ayia Napa. The third applicant, their
daughter, was born in 1959 and lives in Limassol.
- The
applicants were the owners of a plot of land and of a building
located in Famagusta, in the central Franklin Roosevelt street. The
building comprised an underground parking space, eight shops, a
cafeteria and six apartments. The shops were on the ground floor,
while the apartments were on the first, mezzanine and second floor.
Until 14 August 1974 one of these apartments was used by the three
applicants as their home and another by the first applicant as his
surgery. On 14 August 1974, as the Turkish army was advancing, the
applicants had been forced to leave Famagusta. Since then, they had
not been able to return to or to enjoy their properties.
- In
support to their claim to ownership, the applicants produced
certificates of affirmation of ownership of Turkish-occupied
immovable properties issued by the Department of Lands and Surveys of
the Republic of Cyprus. These certificates stated that they were the
legal owners of a plot of land with a building of a surface of 811 m²
in Famagusta, Ayios Nicolaos Quarter, registered under plot no. 1222,
sheet/plan 33/12.6.II, Block E.
- On
9 July 2002 the applicants' representative informed the Court that
the second applicant, Mrs Elli Hadjiprocopiou, had passed away
on 19 October 2000. As a result, her property was subject to an
administration. Under the said administration, ¼ of the plot
described under paragraph 9 above was transferred to the third
applicant, Mrs Maria Hadjiprocopiou-Iacovidou. On 30 March 2001
the first applicant, Mr Costas Hadjiprocopiou, donated ¼ of
the same plot to the third applicant. The latter thus became the
owner of ½ of the plot at issue.
THE LAW
I. PRELIMINARY ISSUE
- The
Court notes at the outset that the second applicant died on
19 October 2000, after the lodging of her application, while the
case was pending before the Court. The two other applicants inherited
her part of the properties referred to in the present application
(see paragraph 10 above). Although the heirs of a deceased applicant
cannot claim a general right for the examination of the application
brought by the latter to be continued by the Court (see Scherer
v. Switzerland, 25 March 1994, Series A no. 287), the Court
has accepted on a number of occasions that close relatives of a
deceased applicant are entitled to take his or her place (see Deweer
v. Belgium, 27 February 1980, § 37, Series A no. 35,
and Raimondo v. Italy, 22 February 1994, § 2, Series
A no. 281-A).
- For
the purposes of the instant case, the Court is prepared to accept
that the first and third applicants can pursue the application
initially brought by Mrs Elli Hadjiprocopiou (see, mutatis
mutandis, Kirilova and Others v. Bulgaria, nos.
42908/98, 44038/98, 44816/98 and 7319/02, § 85, 9 June 2005, and
Nerva and Others v. the United Kingdom, no. 42295/98, § 33,
ECHR 2002 VIII).
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
13. The
Government raised preliminary objections of inadmissibility ratione
loci and ratione temporis, non-exhaustion of domestic
remedies and lack of victim status. The Court observes that these
objections were identical to those raised in the case of Alexandrou
v. Turkey (no. 16162/90, §§ 11-22, 20 January 2009),
and should be dismissed for the same reasons.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants complained that since August 1974, Turkey had prevented
them from exercising their right to the peaceful enjoyment of their
possessions.
They invoked 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.”
- The
Government disputed this claim.
A. The arguments of the parties
1. The Government
- The
Government submitted that the applicants failed to produce reliable
evidence showing that at the time of the Turkish intervention they
were the owners of the properties at issue. Their claim under Article
1 of Protocol No. 1 was therefore unsubstantiated.
- In
any event, the alleged interference with the applicants' property
rights could not be seen in isolation from the general political
situation in Cyprus and had in any event been justified in the
general interest.
2. The applicants
- The
applicants noted that they had produced documentary evidence issued
by the Government of Cyprus certifying that they were the owners of
the properties described in paragraphs 8 and 9 above. The original
title deeds were left behind in Famagusta in 1974 and were since that
date under the control of the respondent Government. Relying on the
principles laid down by the Court in the case of Loizidou
v. Turkey ((merits), 18 December 1996, Reports of
Judgments and Decisions 1996-VI), the applicants alleged that the
interference with their property rights lacked any legal
justification.
3. The third-party intervener
- The
Government of Cyprus observed that its Department of Lands and
Surveys had provided with certificates of affirmation the persons who
did not have title deeds in their possession but whose title had been
entered in the District Land Offices registers in the
Turkish-occupied area. These certificates were prima facie
evidence of their right of property. The authorities of the
“Turkish Republic of Northern Cyprus” (the “TRNC”)
were in possession of all the records of the Department of Lands and
Surveys relating to the title to properties. It was therefore the
duty of the respondent Government to produce them.
- The
Government of Cyprus further noted that the present case was similar
to that of Loizidou v. Turkey ((merits), cited above), where
the Court had found that the loss of control of property by displaced
persons arose as a consequence of the occupation of the northern part
of Cyprus by Turkish troops and the establishment of the “TRNC”,
and that the denial of access to property in occupied northern Cyprus
constituted a continuing violation of Article 1 of Protocol No. 1.
B. The Court's assessment
- The
Court first notes that the documents submitted by the applicants (see
paragraph 9 above) provide prima facie evidence that they had
a title of ownership over the properties at issue. As the respondent
Government failed to produce convincing evidence in rebuttal, the
Court considers that the applicants had a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court recalls that in the aforementioned Loizidou case
((merits), cited above, §§ 63-64), it reasoned as follows:
“63. ... as a consequence of the fact
that the applicant has been refused access to the land since 1974,
she has effectively lost all control over, as well as all
possibilities to use and enjoy, her property. The continuous denial
of access must therefore be regarded as an interference with her
rights under Article 1 of Protocol No. 1. Such an interference
cannot, in the exceptional circumstances of the present case to which
the applicant and the Cypriot Government have referred, be regarded
as either a deprivation of property or a control of use within the
meaning of the first and second paragraphs of Article 1 of Protocol
No. 1. However, it clearly falls within the meaning of the first
sentence of that provision as an interference with the peaceful
enjoyment of possessions. In this respect the Court observes that
hindrance can amount to a violation of the Convention just like a
legal impediment.
64. Apart from a passing reference to the
doctrine of necessity as a justification for the acts of the 'TRNC'
and to the fact that property rights were the subject of
intercommunal talks, the Turkish Government have not sought to make
submissions justifying the above interference with the applicant's
property rights which is imputable to Turkey.
It has not, however, been explained how the need to
rehouse displaced Turkish Cypriot refugees in the years following the
Turkish intervention in the island in 1974 could justify the complete
negation of the applicant's property rights in the form of a total
and continuous denial of access and a purported expropriation without
compensation.
Nor can the fact that property rights were the subject
of intercommunal talks involving both communities in Cyprus provide a
justification for this situation under the Convention. In such
circumstances, the Court concludes that there has been and continues
to be a breach of Article 1 of Protocol No. 1.”
- In
the case of Cyprus v. Turkey ([GC], no. 25781/94,
ECHR 2001-IV) the Court confirmed the above conclusions (§§
187 and 189):
“187. The Court is persuaded that both
its reasoning and its conclusion in the Loizidou judgment (merits)
apply with equal force to displaced Greek Cypriots who, like Mrs
Loizidou, are unable to have access to their property in northern
Cyprus by reason of the restrictions placed by the 'TRNC' authorities
on their physical access to that property. The continuing and total
denial of access to their property is a clear interference with the
right of the displaced Greek Cypriots to the peaceful enjoyment of
possessions within the meaning of the first sentence of Article 1 of
Protocol No. 1.
...
189. .. there has been a continuing violation
of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus are being denied
access to and control, use and enjoyment of their property as well as
any compensation for the interference with their property rights.”
- The
Court sees no reason in the instant case to depart from the
conclusions which it reached in the Loizidou and Cyprus v.
Turkey cases (op. cit.; see also Demades v. Turkey
(merits), no. 16219/90, § 46, 31 July 2003).
- Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1 to the Convention by virtue of the fact that the applicants
were denied access to and control, use and enjoyment of their
properties as well as any compensation for the interference with
their property rights.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicants submitted that in
1974 they had had their home in Famagusta. As they had been unable to
return there, they were the victims of a violation of 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
Government disputed this claim.
- The
applicants submitted that they were the owners, inter alia, of
an apartment in Famagusta and that until 1974 they were using these
premises as their home. They claimed that any interference with their
Article 8 rights had not been justified under the second paragraph of
this provision.
- The
Government of Cyprus submitted that where the applicant's properties
constituted the person's home, there was a violation of Article 8
of the Convention.
- The
Court notes that the Government failed to produce any evidence
capable of casting doubt upon the applicants' statement that, at the
time of the Turkish invasion, they were regularly residing in
Famagusta and that this apartment was treated by the applicants as a
home.
- Accordingly,
the Court considers that in the circumstances of the present case,
the apartment of the applicants qualified as “home”
within the meaning of Article 8 of the Convention at the time when
the acts complained of took place.
- The
Court observes that the present case differs from the Loizidou
case ((merits), cited above) since, unlike Mrs Loizidou, the
applicants actually had a home in Famagusta.
- The
Court notes that since 1974 the applicants have been unable to gain
access to and to use that home. In this connection the Court recalls
that, in its judgment in the case of Cyprus v. Turkey (cited
above, §§ 172-175), it concluded that the complete
denial of the right of Greek Cypriot displaced persons to
respect for their homes in northern Cyprus since 1974 constituted a
continuing violation of Article 8 of the Convention. The Court
reasoned as follows:
“172. The Court observes that the
official policy of the 'TRNC' authorities to deny the right of the
displaced persons to return to their homes is reinforced by the very
tight restrictions operated by the same authorities on visits to the
north by Greek Cypriots living in the south. Accordingly, not only
are displaced persons unable to apply to the authorities to reoccupy
the homes which they left behind, they are physically prevented from
even visiting them.
173. The Court further notes that the
situation impugned by the applicant Government has obtained since the
events of 1974 in northern Cyprus. It would appear that it has never
been reflected in 'legislation' and is enforced as a matter of policy
in furtherance of a bi-zonal arrangement designed, it is claimed, to
minimise the risk of conflict which the intermingling of the Greek
and Turkish-Cypriot communities in the north might engender. That
bi-zonal arrangement is being pursued within the framework of the
inter-communal talks sponsored by the United Nations
Secretary-General ...
174. The Court would make the following
observations in this connection: firstly, the complete denial of the
right of displaced persons to respect for their homes has no basis in
law within the meaning of Article 8 § 2 of the Convention
(see paragraph 173 above); secondly, the inter-communal talks cannot
be invoked in order to legitimate a violation of the Convention;
thirdly, the violation at issue has endured as a matter of policy
since 1974 and must be considered continuing.
175. In view of these considerations, the
Court concludes that there has been a continuing violation of Article
8 of the Convention by reason of the refusal to allow the return of
any Greek-Cypriot displaced persons to their homes in northern
Cyprus.”
- The
Court sees no reason in the instant case to depart from the above
reasoning and findings (see also Demades (merits), cited
above, §§ 36-37).
- Accordingly,
it concludes that there has been a continuing violation of Article 8
of the Convention by reason of the complete denial of the right of
the applicants to respect for their home.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1
OF PROTOCOL NO. 1
- The
applicants complained of a violation under Article 14 of the
Convention on account of discriminatory treatment against them in the
enjoyment of their rights under Article 8 of the Convention and
Article 1 of Protocol No. 1. They alleged that this discrimination
had been based on their national origin and religious beliefs.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court recalls that in the Alexandrou case (cited above, §§
38-39) it has found that it was not necessary to carry out a separate
examination of the complaint under Article 14 of the Convention. The
Court does not see any reason to depart from that approach in the
present case (see also, mutatis mutandis, Eugenia
Michaelidou Ltd and Michael Tymvios v. Turkey, no. 16163/90,
§§ 37-38, 31 July 2003).
VI. 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 applicants
- In
their just satisfaction claims of 19 September 1999, the applicants
requested 569,879 Cypriot pounds (CYP –
approximately 973,695 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 their building in Famagusta, plus interest
from the date on which such rents were due until the day of payment.
The rent claimed was for the period dating back to January 1987, when
the respondent Government accepted the right of individual petition,
until January 2000. The applicants 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
Famagusta, of its development perspectives and of the applicants'
properties.
- The
valuation report calculated the annual rent obtainable from the
applicants' building on the basis of an affidavit of 4 June 1997, in
which the first applicant had stated that the total of all rents
without the family residence and the medical office was, in August
1974, of CYP 510 per month. With the residence and the office the
rents would have come up to CYP 720 per month, for a yearly total
rent of CYP 8,712 (approximately EUR 14,885). The expert considered
these amounts to be reasonable; he further took into account the
trends of rent increase on the basis of: (a) the nature of the area
of property; (b) the trends for the period 1970-1974; (c) the trends
in the unoccupied areas of Cyprus from 1974 onwards. This last trend
was based on the Consumer Price Index for rents and houses issued by
the Department of Statistics and Research of the Government of
Cyprus, increased by a percentage of 25%. Moreover, compound interest
for delayed payment was applied at a rate of 8% per annum.
- On
24 January 2008, following a request from the Court for an update on
the developments of the case, the applicants submitted updated claims
for just satisfaction, which were meant to cover the period of loss
of the use of the properties from 1 January 1987 to 31 December 2007.
They produced a revised valuation report, which, on the basis of the
criteria adopted in the previous report, concluded that the whole sum
due for the loss of use was CYP 730,858 plus CYP 738,957 for
interest. The total sum claimed under this head was thus CYP
1,469,815 (approximately EUR 2,511,326).
- In
their just satisfaction claims of September 1999, the applicants
further claimed CYP 180,000 (approximately EUR 307,548) for each
of them in respect of non-pecuniary damage. In particular, each
applicant firstly claimed CYP 30,000 for the anguish and frustration
he or she suffered on account of the continuing violation of his or
her property rights. They stated that this sum had been calculated on
the basis of the sum awarded by the Court in the Loizidou case
((just satisfaction), Reports 1998-IV, 28 July 1998),
taking into account, however, that the period of time for which the
damage was claimed in the instant case was longer. The applicants
also claimed CYP 90,000 each for the distress and suffering they
had been subjected to due to the denial of their right to respect for
their home and CYP 60,000 each for the violation of their rights
under Article 14 of the Convention.
- Finally,
in their updated claims for just satisfaction of 24 January 2008, the
applicants requested the additional sum of EUR 50,000 each for
non-pecuniary damage.
(b) The Government
44. The
Government filed comments on the applicants' updated claims for just
satisfaction on 30 June 2008 and 15 October 2008. They pointed out
that the present application was part of a cluster of similar cases
raising a number of problematic issues and maintained that the claims
for just satisfaction were not ready for examination. The Government
had in fact encountered serious problems in identifying the
properties and their present owners. The information provided by the
applicants in this regard was not based on reliable evidence.
Moreover, owing to the lapse of time since the lodging of the
applications, new situations might have arisen: the properties could
have been transferred, donated or inherited within the legal system
of southern Cyprus. These facts would not have been known to the
respondent Government and could be certified only by the
Greek-Cypriot authorities, who, since 1974, had reconstructed the
registers and records of all properties in northern Cyprus.
Applicants should be required to provide search certificates issued
by the Department of Lands and Surveys of the Republic of Cyprus. In
cases where the original applicant had passed away or
the property had changed hands, questions might arise as to whether
the new owners had a legal interest in the property and whether they
were entitled to pecuniary and/or non-pecuniary damages.
- As
concerns specifically the present application, the Government noted
that the decision on the admissibility did not identify the
applicants' properties, but confined itself in giving the address of
a building in Famagusta.
- The
Government 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 applicants 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 applicants 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 properties
described in paragraphs 8 and 9 above. In case the conditions
for restitution were not fulfilled, the applicants could claim
financial compensation, to be calculated on the basis of the loss of
income (by applying a 5% rent on the 1974 market values) and increase
in value of the property between 1974 and the date of payment. Had
the applicants applied to the Immovable Property Commission, the
latter would have offered CYP 574,558.06 (approximately EUR 981,689)
to compensate the loss of use and CYP 611,982.25 (approximately
EUR 1,045,632) for the value of the properties. According to an
expert appointed by the “TRNC” authorities, the 1974
open-market value of the applicants' properties was CYP 100,000
(approximately EUR 170,860). Upon fulfilment of
certain conditions, the Immovable Property Commission could also have
offered the applicants exchange of their properties with
Turkish-Cypriot properties located in the south of the island.
49. Finally,
the Government did not comment on the applicants' submissions under
the head of non-pecuniary damage.
2. The third party intervener
- The
Government of Cyprus fully supported the applicants' updated claims
for just satisfaction.
3. The Court's assessment
- The
Court first notes that the Government's submission that doubts might
arise as to the applicants' title of ownership over the properties at
issue (see paragraphs 44 and 45 above) is, in substance, an objection
of incompatibility ratione materiae with the provisions of
Article 1 of Protocol No. 1. Such an objection should have been
raised before the application was declared admissible or, at the
latest, in the context of the parties' observations on the merits. In
any event, the Court cannot but confirm its finding that the
applicants had a “possession” over plot of land and the
building in Famagusta within the meaning of Article 1 of Protocol No.
1 (see paragraph 21 above).
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of pecuniary and
non-pecuniary damage is not ready for decision. It observes, in
particular, that the parties have failed to provide reliable and
objective data pertaining to the prices of land and real estate in
Cyprus at the date of the Turkish intervention. This failure renders
it difficult for the Court to assess whether the estimate furnished
by the applicants of the 1974 market or rental values of their
properties is reasonable. The question must accordingly be reserved
and the subsequent procedure fixed with due regard to any agreement
which might be reached between the respondent Government and the
applicants (Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- In
their just satisfaction claims of September 1999, relying on bills
from their representatives, the applicants sought CYP 2,026.42
(approximately EUR 3,462) for the costs and expenses incurred before
the Court. This sum included CYP 800 (approximately EUR 1,366) for
the costs of the expert report assessing the value of their
properties. In their written observations of 15 January 2004, the
applicants claimed additional legal fees for CYP 2,645 (approximately
EUR 4,519). In their updated claims for just satisfaction of
24 January 2008, they submitted additional bills of costs for
the new valuation report and for legal fees amounting to EUR 392.15
and EUR 2,955.5 respectively. The total sum sought for cost
and expenses was thus approximately EUR 11,328.
- The
Government did not comment on this point.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 in respect of costs and expenses is
not ready for decision. The question must accordingly be reserved and
the subsequent procedure fixed with due regard to any agreement which
might be reached between the respondent Government and the
applicants.
FOR THESE REASONS, THE COURT
- Holds unanimously that the first and third
applicants have standing to continue the present proceedings also in
the second applicant's stead;
- Dismisses by six votes to one the Government's
preliminary objections;
- Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that it is not necessary to
examine whether there has been a violation of Article 14 of the
Convention;
- Holds unanimously 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 applicants 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Karakaş
is annexed to this judgment.
N.B.
F.A.
DISSENTING OPINION OF JUDGE KARAKAŞ
Unlike
the majority, I consider that the objection of non-exhaustion of
domestic remedies raised by the Government should not have been
rejected. Consequently, I cannot agree with the finding of violations
of Article 1 of Protocol No. 1 and Article 8 of the Convention, for
the same reasons as those mentioned in my dissenting opinion in the
case of Gavriel v. Turkey (no. 41355/98, 20
January 2009).
