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FOURTH
SECTION
CASE OF ORPHANIDES v. TURKEY
(Application
no. 36705/97)
JUDGMENT
(just
satisfaction)
STRASBOURG
22
June 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Orphanides v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Işıl
Karakaş, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having deliberated in private on 1 June
2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36705/97) 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 a Cypriot national, Mr Andreas Orphanides (“the
applicant”), on 9 June 1997.
- In
a judgment delivered on 20 January 2009 (“the principal
judgment”), the Court dismissed various preliminary objections
raised by the Turkish Government and found continuing violations of
Article 8 of the Convention by reason of the complete denial of the
right of the applicant to respect for his home and of Article 1 of
Protocol No. 1 to the Convention by virtue of the fact that the
applicant was denied access to and control, use and enjoyment of his
properties as well as any compensation for the interference with his
property rights. Furthermore, it found that it was not necessary to
examine the applicant's complaint under Article 14 of the Convention
(Orphanides v. Turkey, no. 36705/97, §§ 25, 35,
44 and 49 and points 1-4 of the operative provisions, 20 January
2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of 695,625 Cypriot pounds (CYP –
approximately 1,188,544 euros (EUR)) for the deprivation of his
properties concerning the period between January 1987, when the
respondent Government accepted the right of individual petition, and
1999. A valuation report, setting out the basis of the applicant's
loss, was appended to his observations. Furthermore, the applicant
claimed CYP 110,000 (approximately EUR 187,946) in respect of
non-pecuniary damage and approximately EUR 11,143 for the costs
and expenses incurred before the Court.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it in whole and invited
the Government and the applicant to submit, within three months,
their written observations on that issue and, in particular, to
notify the Court of any agreement they might reach (ibid., §§
65 and 68, and point 5 of the operative provisions).
- On
13 July 2009 the Court invited the applicant and the Government to
submit any materials which they considered relevant to assessing the
1974 market value of the properties concerned by the principal
judgment.
- The
applicant and the Government each filed comments on this matter.
- On
4 September 2009, the applicant was invited to submit written
evidence that the properties at stake were still registered in his
name or to indicate and substantiate any transfer of ownership which
might have taken place.
- On
6 October 2009 the applicant produced affirmations of ownership of
Turkish-occupied immovable properties issued by the Department of
Lands and Surveys of the Republic of Cyprus. According to these
documents, on 21 September 2009 the properties described in
paragraph 15 below were registered in the name of Andreas
Orphanides.
THE LAW
I. PRELIMINARY ISSUE
- In
a letter of 22 April 2010 the Government requested the Court to
decide that it was not necessary to continue the examination of the
applicant's just satisfaction claims. They invoked the principles
affirmed by the Grand Chamber in Demopoulos and Others v. Turkey
([GC] (Dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03,
10200/04, 14163/04, 19993/04, 21819/04, 1 March 2010) and argued
that the applicant should address his claims to the Immovable
Property Commission (the “IPC”) instituted by the “TRNC”
Law 67/2005.
- The
Court first observes that the Government's submissions were
unsolicited; they were received by the Registry long after the
expiration of the time-limit for filing comments on just satisfaction
and almost two months after the delivery of the Grand Chamber's
decision in Demopoulos. It could therefore be held that the
Government are estopped from raising the matter at this stage of the
proceedings.
- In
any event, the Court cannot but reiterate its case-law according to
which objections based on non-exhaustion of domestic remedies raised
after an application has been declared admissible cannot be taken
into account at the merits stage (see Demades v. Turkey (merits),
no. 16219/90, § 20, 31 July 2003, and Alexandrou
v. Turkey (merits), no. 16162/90, § 21, 20 January
2009) or at a later stage. This approach has not been modified by the
Grand Chamber, as the cases of Demopoulos and Others had not
been declared admissible when Law 67/2005 entered into force and when
Turkey objected that domestic remedies had not been exhausted.
- Furthermore,
the Court considers that its previous finding in the present case
that the applicant was not required to exhaust the remedy introduced
by Law 67/2005 constitutes res judicata. It recalls that after
the compensation mechanism before the IPC was introduced, the
Government raised an objection based on non-exhaustion of domestic
remedies. This objection was rejected in the principal judgment (see
paragraphs 24-25 of the principal judgment and point 1 of its
operative provisions). The Government also unsuccessfully requested
the referral of the case to the Grand Chamber.
- It
follows that the Government's request to stay the examination of the
applicant's claims for just satisfaction should be rejected. The
Court will therefore continue to examine the case under Article 41 of
the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The parties' submissions
(a) The applicant
- In
his just satisfaction claims of 29 September 1999, the applicant
requested CYP 695,625 (approximately EUR 1,188,544) for pecuniary
damage. He relied on an expert's report assessing the value of his
losses which included the loss of annual rent collected or expected
to be collected from renting out his properties, plus interest from
the date on which such rents were due until the day of payment. The
rent claimed was for the period dating back to January 1987, when the
respondent Government accepted the right of individual petition,
until 1999. The applicant did not claim compensation for any
purported expropriation since he was still the legal owner of the
properties. The valuation report contained a description of Lapithos
village, where the applicant's properties were located. Since
20 April 1990 (date of a donation made by the applicant's
parents) these properties were registered in the applicant's name as
follows (see paragraph 10 of the principal judgment):
(a) plot
no. 288/3, sheet/plan 11/14 E.1, plot of land – olive grove;
area: 2,282 square metres (m²); share: ½;
(b) plots
nos. 511 and 513, sheet/plan 11/14E.2, plots of land; area: 3,862 m²
and 3,405 m² respectively; share: ¼;
(c) plots
nos. 19, 20, 28 and 29, sheet/plan 11/15W.1, plots of land; area:
1,053 m², 1,024 m², 1,769 m² and 1,405 m²
respectively; share: ½;
(d) plots
nos. 98 and 128/1, sheet/plan 11/15W.2, lemon plantations; area:
5,219 m² and 1,469 m² respectively; share: ½;
(e) plot
no. 296, sheet/plan 11/15W.2, lemon plantation with bore hole; area:
4,877 m²; share: ½;
(f) plots
nos. 22, 22/1, 22/2, 22/3 and 22/4, sheet/plan 11/15W.2 and E.2,
lemon plantation with two wells and one ground storey residence;
area: 7,032 m²; share: ½;
(g) plot
no. 42, sheet/plan 11/15W.2.E (no. 2), lemon plantation; area: 1,018
m²; share: ½;
(h) plot
no. 104, sheet/plan 11/15W.2.E (no. 2), tank of an area of 37 m²
with a freshwater spring; share: 8/49;
(i) plots
nos. 60/1/2, 63/1 and 63/3, sheet/plan 11.23E.1,W (no. 1), lemon
plantation (area: 2,358 m²) with a bore hole and one tank (area:
84 m²); on this property had been constructed: a ground
storey residence of an area of 152.25 m²; two shops of an area
of 56 m²; two semidetached ground storey residences (areas:
152.25 m² and 63 m² respectively); one residence of an area
of 219.41 m²; share: ½;
(j) plots
nos. 53, 773, 774, 775 and 776, sheet/plan 11/23W.2,E.1 and 11/23W1E
(no. 2), right to use a freshwater spring; share: 23/2880.
- The
starting point of the valuation report was the annual rental value of
the applicant's properties in 1974, calculated on the basis of a
percentage (5 or 6%) of the market value of the properties or
assessed by comparing the rental value of similar land at the
relevant time. This sum was subsequently adjusted upwards according
to an average annual
rental increase of 12% or 5%. Compound interest for delayed payment
was applied at a rate of 8% per annum, the total sum due for interest
being CYP 226,344 (approximately EUR 386,731).
- According
to the expert, the 1974 market and rental values of the applicant's
properties listed in paragraph 15 (a) – (j) above were the
following:
-
property listed under (a): market value CYP 2,510 (approximately
EUR 4,288); rental value CYP 150.61 (approximately EUR 257);
-
property listed under (b): market value CYP 4,059.13 (approximately
EUR 6,935); rental value CYP 243.55 (approximately EUR 416);
-
property listed under (c): market value CYP 14,600.3 (approximately
EUR 24,946); rental value CYP 876.03 (approximately EUR 1,496);
-
property listed under (d): market value CYP 11,133.75 (approximately
EUR 19,023); rental value CYP 668.03 (approximately EUR 1,141);
-
property listed under (e): market value CYP 14,631 (approximately
EUR 24,998); rental value CYP 877.86 (approximately EUR 1,500);
-
property listed under (f): market value CYP 15,554 (approximately
EUR 26,575); rental value CYP 778 (approximately EUR 1,329);
-
property listed under (g): market value CYP 1,781.5 (approximately
EUR 3,043); rental value CYP 106.89 (approximately EUR 182);
-
property listed under (h): market value CYP 5 (approximately
EUR 8.5); rental value CYP 0.3 (approximately EUR 0.5);
-
property listed under (i): market value CYP 28,294 (approximately
EUR 48,343); rental value CYP 1,414.7 (approximately EUR 2,417);
-
property listed under (j): market value CYP 5,250 (approximately
EUR 8,970); rental value CYP 315 (approximately EUR 538).
- In
a letter of 28 January 2008 the applicant observed that a long lapse
of time had passed since he had presented his claims for just
satisfaction and that the claim for pecuniary losses needed to be
updated according to the increase of the market value of land in
Cyprus (between 10 and 15% per annum).
- In
his further claims of 6 October 2009 the applicant first requested to
obtain full access, use and enjoyment of his properties. He moreover
sought compensation for loss of use for the period between 20 April
1990 and 31 December 2009. He produced a new valuation report,
according to which the whole sum to which he was entitled under the
head of pecuniary damage was EUR 5,051,793.
- The
new valuation report adjusted the 1974 values of the properties
described in paragraph 15 below as follows:
-
property listed under (a): market value CYP 2,500 (CYP 2,510 in the
expert's report of 29 September 1999);
-
property listed under (b): market value CYP 4,000 (CYP 4,059.13 in
the expert's report of 29 September 1999);
-
property listed under (c): market value CYP 15,500 (CYP 14,600.3 in
the expert's report of 29 September 1999);
-
property listed under (d): market value CYP 12,500 (CYP 11,133.75 in
the expert's report of 29 September 1999);
-
property listed under (e): market value CYP 16,000 (CYP 14,631 in the
expert's report of 29 September 1999);
-
property listed under (f): market value CYP 18,500 (CYP 15,554 in the
expert's report of 29 September 1999);
-
property listed under (g): market value CYP 2,000 (CYP 1,781.5 in the
expert's report of 29 September 1999);
-
property listed under (i): market value CYP 26,000 (CYP 28,294 in the
expert's report of 29 September 1999);
-
property listed under (j): market value CYP 5,000 (CYP 5,250 in the
expert's report of 29 September 1999).
No
estimate was given for the property listed under (h), which according
to the expert's report of 29 September 1999 had a 1974 market value
of CYP 5.
- Thus,
the overall 1974 market value of all the applicant's properties was
fixed at CYP 102,000 (approximately EUR 174,277). As the expert
estimated the percentage in annual increase in property values at
12%, he assumed that on 20 April 1990 the properties at stake were
worth CYP 602,000 (approximately EUR 1,028,577). It was
furthermore assumed that ground rents would be an average of 4,5% of
the open market value of the properties and interests for delayed
payment were applied at a rate of 8% up to the end of 2000 and of 6%
for the years 2001-2009.
- The
expert annexed to his report a judgment of the Kyrenia District
Court, given on 6 July 1973, concerning compensation in respect of
land acquisitions which had taken place in February 1970. It
transpired from this judgments that the values of land located in
Ayios Amvrosios at the relevant time were between CYP 560
(approximately EUR 956) and CYP 1,120 (approximately EUR 1,913) per
decare and that the land values had had a 20% annual increase. He
underlined that in 1974 the area of Lapithos was at a much higher
level of demand than the properties in Ayios Amvrosios. The expert
also annexed a synoptic table indicating the prices of fifteen
“comparable sales for properties as at 1974 in Lapithos area”.
According to this table, in 1974 the value of one square metre of
land was comprised between CYP 13.699 (approximately EUR 23.4) and
CYP 2.039 (approximately EUR 3.4).
- In
his just satisfaction claims of 29 September 1999, the applicant
claimed CYP 40,000 (approximately EUR 68,344) in respect of
non-pecuniary damage. He stated that this sum had been calculated on
the basis of the sum awarded by the Court in the Loizidou case
((just satisfaction), 28 July 1998, Reports of Judgments and
Decisions 1998-IV), taking into account, however, that the period
of time for which the damage was claimed in the instant case was
longer and that there had also been a violation of Article 14 of the
Convention. He further claimed CYP 70,000 (approximately EUR 119,602)
in respect of the moral damage suffered for the loss of his home.
- On
6 October 2009 the applicant applied a 25% increase over his claims;
he thus sought EUR 85,430 for the non-pecuniary damage connected
to the violation of Article 1 of Protocol No. 1 and EUR 149,502 for
the non-pecuniary damage connected to the violation of Article 8 of
the Convention. He underlined the anguish and frustration he had been
experiencing over the years by reason of his condition of an
internally displaced person.
- He
further requested that “exemplary and punitive damages”
be applied against the respondent Government, having regard to their
“particularly blameworthy conduct”, and that a
“consequential order” be issued by the Court. The latter
should invite Turkey to put an end to the ongoing violations found in
his case. Finally, until restoration of the applicant into the
peaceful enjoyment of his properties and home or until the expiry of
a period of 12 years from the delivery of the Court's judgment,
Turkey should be bound to pay the sum of EUR 252,589.65 per year;
this sum should be increased every year by a rate equal to the
marginal lending rate of the European Central Bank, to which should
be added three percentage points.
(b) The Government
- The
Government filed comments on the applicant's claims for just
satisfaction on 22 September 2008 and 6 October 2009. They observed
that the applicant was only a co-owner of the properties which he had
acquired in 1990. Before claiming an unfettered right to develop or
lease such properties, he should satisfy the Court that at the
domestic level the rights of the other co-owners had been respected.
In particular, development or lease of co-owned properties depended
on the other shareholders' consent. Without the latter, there could
be no development and the property could not bring any profit.
- The
applicant's father was not a party to the proceedings and the
applicant was not entitled to claim damages on his behalf for the
period before the date on which he had acquired ownership. As an
annual increase of the value of the properties had been applied, it
would be unfair to add compound interest for delayed payment. The
increase of rent and the interest rate were so assumptive and high
that they reminded usury practices. In any event, the alleged 1974
market value of the properties was exorbitant, highly excessive and
speculative; it was not based on any real data with which to make a
comparison and made insufficient allowance for the volatility of the
property market and its susceptibility to influences both domestic
and international. The report submitted by the applicant had instead
proceeded on the assumption that the property market would have
continued to flourish with sustained growth during the whole period
under consideration.
- The
Government further submitted that Turkey had recognised the
jurisdiction of the Court on 21 January 1990, and not in January
1987. The applicant had been unable to establish a title of
ownership over any source of water and in any event the freshwater
spring referred to in the application had dried up. As water was very
scarce in Cyprus, it could be assumed that any freshwater spring
which had existed many years ago would have been compulsorily
acquired by the Government of Cyprus.
- In
their comments of 6 October 2009, the Government reiterated that
according to the searches made by the authorities of the “TRNC”,
in 1974 the properties listed in paragraph 15 (d), (e), (i) and
(j) above had not been owned by the applicant's father (Mr Gregoris
Orphanides). It followed that Mr Gregoris Orphanides could not
have transferred to the applicant properties over which he had had no
title of ownership (see paragraph 56 of the principal judgment).
- As
indicated in a document annexed to the Government's observations of 6
October 2009, the Turkish-Cypriot authorities were ready to offer the
applicant CYP 167,449.2 (approximately EUR 286,103) for compensating
his loss of use. The applicant would have to prove his title to the
properties in 1974 and his present entitlement to them and to show
his relationship to “Greghoris Kyriacou” and “Greghoris
Kyriacou Orphanides”, in whose names some of the properties
were still registered. Moreover, two of the plots referred to in the
application had been registered in the name of a certain “Kyriau
Christodolou Allamenou”.
- The
Government further observed that in making its assessment as regarded
compensation for the loss of use, the IPC had collected data from the
Department of Lands and Surveys on the 1973-1974 purchase prices for
comparable properties. It had also examined the development of
interest rates of the Cyprus Central Bank. The loss of income was
then calculated by assuming that the obtainable rent would have been
5% of the value of the properties; this last value had been modified
every year on the basis of the land market value index. Cyprus
Central Bank interest rates had been applied on the sums due since
1974.
- It
could therefore be said that the IPC had used the same criteria as
the Greek-Cypriots applicants. However, being in possession of the
land registers in which comparable sales had been recorded, it was
better placed to assess the 1974 market values of the properties.
Applicants had, in general, tended to exaggerate and inflate these
values. Their calculations were highly presumptive; for instance, the
percentage used for assessing the loss of income had frequently been
the same for buildings, fields, orchards and plots of land,
irrespective of their location, of the existence of electricity or
water supplies and of an access to a minor or major road. On the
contrary, the Turkish-Cypriot authorities had taken all these factors
into consideration; they had applied a higher percentage for
buildings in built-up areas than for vacant fields.
- The
Government also insisted that, as it could not be excluded that the
properties at issue had been transferred within the legal system of
southern Cyprus, applicants should be required to provide search
certificates issued by the Greek-Cypriot Department of Lands and
Surveys. Failure to substantiate title to the properties at the
material time and at the time of the Court's judgment should be
considered as a failure to cooperate with the Court. No just
satisfaction should be awarded in respect to unsubstantiated or
dubious claims.
- After
the delivery of the Court's principal judgment, the Turkish-Cypriot
authorities had invited the applicant to apply to the IPC in order to
reach an agreement on the matter of compensation. The applicant had
not replied to this invitation. This attitude was due mainly to
political reasons and to the pressures exerted by the Greek-Cypriot
authorities in order to discourage their citizens from applying to
the IPC. Misleading information had been given about its powers and
the Greek-Cypriots who had applied to it had been questioned by the
Office of the Attorney General. In 2006 the Greek-Cypriot media had
even revealed a “shame list” and published the names of
applicants to the IPC.
- The
Government finally noted that the amount claimed for non-pecuniary
damage was highly exaggerated and incompatible with the case-law and
practice of the Court. At the time of the Turkish intervention, the
applicant was not the owner of the house in Lapithos, which was
belonging to his parents. As the applicant was born in 1955, he did
not have a reasonable expectation to be living with his family in the
same house up to the present time. In any event, it shouldn't be
possible, for the applicant, to duplicate the heads of non-pecuniary
damages.
2. The Court's assessment
- The
Court recalls that in its principal judgment it has concluded that
there had been a continuing violation of the applicant's rights
guaranteed by Article 8 of the Convention and Article 1 of
Protocol No. 1 by virtue of the complete denial of the applicant's
rights with respect to his home and the peaceful enjoyment of his
properties in northern Cyprus (see paragraphs 44 and 35 of the
principal judgment). Furthermore, its finding of a violation of
Article 1 of Protocol No. 1 was based on the fact that, as a
consequence of being continuously denied access to his land and real
estate, the applicant had effectively lost all access and control as
well as all possibilities to use and enjoy his properties (see
paragraph 33 of the principal judgment). He is therefore entitled to
a measure of compensation in respect of losses directly related to
this violation of his rights as from the date on which he formally
acquired ownership of the properties, namely 20 April 1990,
until the present time (see, mutatis mutandis, Cankoçak
v. Turkey, nos. 25182/94 and 26956/95, § 26,
20 February 2001, and Demades v. Turkey, (just
satisfaction), no. 16219/90, § 21, 22 April 2008).
- In
connection with this, the Court recalls that in its principal
judgment it has rejected an objection of incompatibility ratione
materiae with the provisions of Article 1 of Protocol No. 1
raised by the Government in their comments on the just satisfaction
claims and based on the allegation that the applicant's father was
not the owner of the properties listed in paragraph 15 (d), (e), (i)
and (j) above (see paragraph 63 of the principal judgment). In any
event, the affirmations of ownership of Turkish-occupied immovable
properties produced by the applicant (see paragraph 8 above) show
that on 21 September 2009 he was still the owner of the properties
described in paragraph 15 above.
- In
the opinion of the Court, the valuations furnished by the applicant
involve a significant degree of speculation and make insufficient
allowance for the volatility of the property market and its
susceptibility to influences both domestic and international (see
Loizidou v. Turkey (just satisfaction), cited above, §
31). Accordingly, in assessing the pecuniary damage sustained by the
applicant, the Court has, as far as appropriate, considered the
estimates provided by him (see Xenides-Arestis v. Turkey (just
satisfaction), no. 46347/99, § 41, 7 December
2006). In general it considers as reasonable the approach to
assessing the loss suffered by the applicant with reference to the
annual ground rent, calculated as a percentage of the market value of
the properties, that could have been earned during the relevant
period (Loizidou (just satisfaction), cited above, § 33,
and Demades (just satisfaction), cited above, § 23).
Furthermore, the Court has taken into account the uncertainties,
inherent in any attempt to quantify the real losses incurred by the
applicant (see Loizidou v. Turkey, (preliminary
objections), 23 March 1995, § 102, Series A no. 310, and
(merits), 18 December 1996, § 32, Reports 1996-VI).
- The
Court notes that notwithstanding its request to submit material
relevant to assessing the 1974 market value of the applicant's
properties, the parties have produced few elements in this respect.
The Government have relied on the accuracy of the IPC's calculations
(see paragraphs 31-32 above), while the applicant has referred to the
sale, in 1970, of comparable land. According to his expert's
assessment, this sale showed that at the relevant time the market
price of land located in Ayios Amvrosios was comprised between EUR
956 and EUR 1,913 per decare, which is between EUR 0.956 and EUR
1.913 per square metre. Moreover, according to the synoptic table
produced by the expert, in 1974 fields in Lapithos could be sold for
a sum comprised between EUR 3.4 and 23.4 per square metre (see
paragraph 22 above). The parties have failed to produce any data
relevant to assessing the 1974 market price of buildings.
- The
Court further notes that the applicant submitted an additional claim
in the form of annual compound interest in respect of the losses on
account of the delay in the payment of the sums due. While the Court
considers that a certain amount of compensation in the form of
statutory interest should be awarded to the applicant, it finds that
the rates applied by him are on the high side (see, mutatis
mutandis, Demades (just satisfaction), cited above, §
24).
- Finally,
the Court considers that an award should be made in respect of the
anguish and feelings of helplessness and frustration which the
applicant must have experienced over the years in not being able to
use his properties as he saw fit and enjoy his home (see Demades
(just satisfaction), cited above, § 29, and Xenides-Arestis
(just satisfaction), cited above, § 47).
- Having
regard to the above considerations, the Court is of the opinion that
the sums claimed by the applicant in respect of pecuniary and
non-pecuniary damage (respectively EUR 5,051,793 and EUR 234,932
– see paragraphs 19 and 24 above) are excessive. At the same
time, the amount which the “TRNC” authorities could have
offered the applicant in respect of loss of use (approximately
EUR 286,103 – see paragraph 30 above) does not seem to
take due account of the number and nature of the properties owned by
the applicant and listed in paragraph 15 above. Making its assessment
on an equitable basis, the Court decides to award the applicant EUR
400,000.
B. Costs and expenses
- In
his just satisfaction claims of 29 September 1999, the applicant
sought CYP 5,480 (approximately EUR 9,363) and 1,410.93 British
pounds (£) (approximately EUR 1,780) for the costs and expenses
incurred before the Court. These sums (totalling EUR 11,143) included
the cost of the expert report assessing the value of his properties.
- On
6 October 2009 the applicant increased his claim for costs and
expenses up to EUR 22,555.11. He underlined that he had to bear the
costs of a new valuation report (amounting to EUR 6,900) and of the
filing of fresh observations on the issue of just satisfaction.
- The
Government did not comment on this point.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see, for
example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- The
Court notes that the case involved perusing a certain amount
of factual and documentary evidence and required a fair degree of
research and preparation. In particular, the
costs associated with producing a valuation report in view of the
continuing nature of the violations at stake were essential to enable
the Court to reach its decision regarding the issue of just
satisfaction (see Demades (just satisfaction), cited
above, § 34).
- Although
the Court does not doubt that the fees claimed were actually
incurred, it considers the amount claimed for the costs and expenses
relating to the proceedings before it excessive and decides to award
a total sum of EUR 8,000.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's request to
stay the examination of the applicant's claims for just satisfaction;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
400,000 (four hundred thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
