PITSILLOS (N° 1) proti Kypru

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31483/03
by Modestos PITSILLOS
against Cyprus

The European Court of Human Rights (First Section), sitting on 21 September 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Modestos Pitsillos, is a Cypriot national who was born in 1920 and lives in Nicosia. He was represented by Mrs E. Vrahimi, 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.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner of a plot of land (no. 432) in Kato Moni, in the district of Nicosia. The surface area of the plot was approximately 676 square meters.

On 12 June 1987 a notice of compulsory acquisition (no. 950) was published in the Official Gazette of the Republic of Cyprus concerning a number of properties including that of the applicant. In total 356 square metres were to be compulsorily acquired from his property. The purpose of the compulsory acquisition was the construction, improvement, alignment and paving of a public road.

On 14 August 1987 the order of compulsory acquisition (no. 11312) was published in the Official Gazette.

On 11 November 1988 a revocation order was published in respect of 5 square metres. Accordingly, the part of the applicant’s property to be compulsorily acquired was reduced to 351 square metres.

As a result of the compulsory acquisition the road was diverted and cut across the applicant’s plot dividing it into approximately two equal parts. Furthermore, during the road’s construction, damage was caused to forty-one almond trees that had been on the part of the property not affected by the compulsory acquisition.

The applicant and the acquiring authority did not reach an agreement as regards the compensation to be granted in respect of the compulsory acquisition. The latter considered that the applicant was not entitled to any compensation for the acquisition and the damage caused to the trees but only for expenses in respect of construction works he would have to carry out as a result of the acquisition.

On 27 November 1989 the applicant filed an application (no. 41/89) with the District Court of Nicosia under the Compulsory Acquisition of Property Law 1962 (Law 15/1962) requesting an award of just and equitable compensation for the compulsory acquisition of part of his property. The applicant claimed that his property had suffered significant damage because of the compulsory acquisition. His expert assessed this damage at 2,857 Cyprus pounds (CYP). This amount included compensation for the compulsory acquisition (CYP 356), the almond trees (CYP 301) and the construction works that had to be carried out (CYP 2,200). On the other hand, the Government’s expert considered that there had been an increase in the value (betterment) of the remaining part of the property due to the acquisition and consequently, that no compensation should be granted. Furthermore, the Government’s expert considered that the damage to the almond trees could not be taken into account when determining the compensation since the property was located in a residential area and could be used for building purposes. Finally, he assessed the expenses to be incurred by the applicant in carrying out construction works due to the acquisition at CYP 200.

The District Court carried out a local inspection of the property in the presence of the parties, their lawyers and the Government’s expert.

On 22 July 1994 the District Court delivered its judgment by which it dismissed the applicant’s claim for compensation concerning the compulsory acquisition. In particular, the court considered that the evidence submitted by the Government’s expert was more thorough, accurate and credible. It stated that the applicant’s expert had admitted making mistakes several times and that his evidence had been ambiguous and vague. He had not carried out a valuation of the whole property in order to determine any possible damage or betterment caused by the acquisition. In this connection, the court noted that it was not possible to determine whether there was betterment or injurious affection to the two parts of the property without assessing what the value of the whole property was before it was affected by the acquisition. Furthermore, the applicant’s expert had been unclear about the manner in which he had determined the value of the property per square metre. In addition, although the applicant’s expert assessed the property’s value on the basis that it constituted residential property, he then included the value of the uprooted almond trees in his valuation on the basis that the property was not within a residential area.

The value of a plot of land was assessed in monetary terms on the basis of its use and the purpose for which it was suitable. The view of the Government’s expert that residential development was more profitable than agricultural development was reasonable and therefore this test was the starting point for determining the compensation to be awarded. The court noted that the property should be considered as residential property since it was within a residential area. Accordingly, any damage to the trees was included in the valuation which was based on the residential value of the property.

On the evidence submitted the court found that there had been an increase in value (betterment) to the remaining part of the property due to the construction of the new road. It held, therefore, that the applicant was not entitled to compensation in respect of the compulsory acquisition or any compensation in respect of injurious affection to the remaining part. However, the court awarded the applicant the sum of 500 Cypriot pounds (CYP) in respect of the construction works. It also awarded interest on this amount from the date of publication of the notice of acquisition at the annual rate of 9 %. Finally, the court awarded the applicant costs and the amount of CYP 80 which was agreed between the parties as fees for the applicant’s expert.

On 30 August 1994 the applicant filed an appeal with the Supreme Court. In his appeal the applicant invoked eleven grounds challenging the evidence given by the Government’s expert and the findings of the district court that he was not entitled to any compensation for the compulsory acquisition and damage cause thereby. In the first ground of his appeal the applicant stated, inter alia, that

“the court had been mistaken in accepting the perjured testimony of the Government’s expert witness absolving thus the acquiring authority from paying a sum of money as compensation which should have been paid in conformity with the Constitution as just and equitable compensation in cash and promptly...”.

In the seventh ground of his appeal he repeated that reasonable compensation should have been granted and in the eleventh ground he argued that his human rights had been violated.

On 30 September 1999 the Supreme Court dismissed the appeal. Upon examining the applicant’s arguments the Supreme Court considered that the District Court had given satisfactory reasons in its judgment and had correctly approached the expert evidence submitted. It therefore upheld the District Court’s findings and awarded costs against the applicant.

B. Relevant domestic law

Article 23 of the Cyprus Constitution provides as follows:

“(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.”

According to Section 9 of the Compulsory Acquisition of Property Law 1962 (Law 15/1962), as amended by Law N. 25/83, the owner of property which is subject to compulsory acquisition, may apply to the civil courts for determination of the compensation payable, in the event that no agreement is reached with the acquiring authority in this respect. 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).

Section 10 of the same Law sets out the criteria and principles for the purposes of determining fair and equitable compensation for the compulsory acquisition of property. Paragraph (f) of that section provides as follows:

“(f) in the case of acquisition of only part of an immovable property, on the basis of the present Law, account shall be taken of any possible increase or reduction accruing by reason of the acquisition in the value of another property owned by the owner together with the part that is compulsorily acquired”.

COMPLAINTS

1. In his application the applicant complained under Article 1 of Protocol No. 1 of the refusal of the authorities to award him compensation in respect of the compulsory acquisition of his property.

2. By letter dated 8 July 2005 the applicant also complained under Article 6 of the Convention. In particular, he complained about the fairness of the proceedings and that the costs that had been awarded in his favour before the district court had been unfairly dismissed by the Supreme Court on appeal that ordered the costs to be paid by him.

THE LAW

1. The applicant complained of a violation of his property rights under Article 1 of Protocol No. 1. In particular, he claimed that he had not been awarded any compensation for the compulsory acquisition of his property. Article 1 of Protocol No. 1 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.”

A. Exhaustion of domestic remedies

The Government submitted that the application should be rejected for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, they argued that the applicant had not raised the issue of a violation of his rights under Article 23 of the Constitution and/or Article 1 Protocol No. 1 to the Convention before the domestic courts. He had not complained that the failure to award him compensation for the compulsory acquisition of part of his property was contrary to the Constitution and/or the Convention. In this connection, the Government noted that the Supreme Court did not examine constitutional matters ex proprio motu and that such matters had to be specifically raised and pleaded by the parties concerned.

The applicant disputed the Government’s arguments. He submitted that the only issue he had raised before the domestic courts was the Government’s obligation to award him just and equitable compensation for the deprivation of his property as required by the Constitution. This was explicitly stated in his grounds of appeal in which he had also argued that his human rights had been infringed. This was sufficient for the purposes of the Convention that did not require a specific reference to Article 1 of Protocol No. 1. Furthermore, he emphasised that the essence of the proceedings was the determination by the courts of the compensation payable for the compulsory acquisition of part of his property and other damages caused by it. He had then challenged on appeal the first instance court’s failure to award him such compensation. In view of the above, the applicant considered that he had exhausted domestic remedies.

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).

In the present case, the Court observes that the applicant had applied to the District Court under the Compulsory Acquisition of Property Law 1962 (as amended by Law N. 25/83) for the determination of the compensation payable for the compulsory acquisition of part of his property. The applicant had applied to the court following the Government’s refusal to grant him any compensation and the sole purpose of the proceedings was the determination of such compensation. Furthermore, although the applicant did not cite Article 23 of the Constitution or Article 1 of Protocol No. 1 in his grounds of appeal, he claimed just and equitable compensation in conformity with the Constitution in respect of the compulsory acquisition and challenged the first instance court’s findings in this respect.

In these circumstances the Court is satisfied that applicant did in fact raise this complaint in substance before the domestic courts and, therefore, considers that it cannot be rejected under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies.

B. Substance of the applicant’s complaint

The Government submitted it was for the court to decide, after taking into account all the evidence of the experts of the acquiring authority and the owner concerned, whether there was betterment, and to assess the value of both the part compulsorily acquired and the remaining part so as to determine the compensation payable. There was no presumption of betterment under domestic law and if the acquiring authority alleged betterment it had to prove it. An owner was free to adduce evidence to challenge the acquiring authority’s allegation of betterment and the alleged extent of its value.

In the present case the District Court, after taking into account the evidence submitted by both sides, had assessed that the value of the betterment to the applicant’s remaining property was greater than the value of the part compulsorily acquired, so that the value of that part was counter-balanced by the value of the betterment to the remaining part. Accordingly, it held that there was no loss due to the acquisition. The court also found that there had been deficiencies and inconsistencies in the valuation of the applicant’s expert. The Government therefore considered that in the circumstances the application of domestic law did not impose a disproportionate burden on the applicant in violation of Article 1 of Protocol No. 1.

The applicant disputed the Government’s submissions. He argued that there had not been any betterment resulting from the compulsory acquisition of part of his land. His property had already been serviced by the pre-existing road and no betterment arose by dividing his property and building a new road right through the middle of it. Furthermore, the courts had completely failed to take into account the actual damage caused to the applicant’s remaining property by the destruction of his almond trees. It had considered that the applicant’s property was more valuable as a building plot rather than an orchard or agricultural land even though at the time no residential development was taking place in the area.

The Court recalls that an interference with peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69). Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicant. The taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under this provision (see Malama v. Greece, no. 43622/98, § 52, ECHR 2001-II, and Platakou v. Greece, no. 38460/97, § 57, ECHR 2001-I). That Article does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest” may call for less than reimbursement of the full market value (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 34-35, §§ 70-71; Papachelas v. Greece [GC], no. 31423/96, § 48, ECHR 1999-II).

The Court points out that it is not required to decide on what basis the domestic courts should have assessed the amount of compensation payable (see mutatis mutandis, Malama v. Greece, cited above, § 51). Having regard to all the evidence adduced, the Court finds no indication that the courts failed to consider the arguments put forward by the applicant and his expert as regards the assessment of the compensation to be awarded in respect of the compulsory acquisition.

Following an examination of the evidence submitted by the experts, the District Court considered that the Government expert’s findings were more accurate and credible than those of the applicant’s expert. It found overall that the conclusions of the latter had been ambiguous and vague. In this connection, the court noted, inter alia, that by not assessing the value of the entire property before it was affected by the acquisition, it was not possible for the applicant’s expert to ascertain whether there had been betterment or injurious affection to the remaining part and to what extent as a consequence of the acquisition. Furthermore, the court found that the applicant’s expert’s valuation had been inconsistent as regards the nature of the property for the purposes of assessing the alleged damage. As a result, the court held that the acquiring authority had established that there had been betterment to the remaining part of the property and therefore, that the applicant was not entitled to any compensation for the acquisition or the damage caused thereby.

These findings were upheld by the Supreme Court.

The Court finds that the compensation proceedings viewed as a whole afforded the applicant reasonable opportunity to put his case to the authorities with a view to establishing a fair balance between the conflicting interests at stake.

Having regard to all the foregoing factors and bearing in mind the margin of appreciation which Article 1 of Protocol No. 1 affords national authorities, the Court finds that, in the circumstances, the domestic courts managed to strike a fair balance between the general interest of the community and the protection of the applicant’s property rights. It does not therefore consider that the burden borne by the applicant was disproportionate. Having regard to the above, the Court considers that this complaint does not disclose any appearance of a violation of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. By letter dated 8 July 2005 the applicant also complained under Article 6 of the Convention. In particular, he complained about the fairness of the proceedings and that the costs that had been awarded in his favour before the district court had been unfairly dismissed by the Supreme Court on appeal that ordered the costs to be paid by him. Article 6 of the Convention, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court notes that the final judgment of the Supreme Court in the case was delivered on 30 September 1999. It follows that this part of the application is inadmissible for non-compliance with the six months’ rule set out in Article 35 § 1 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President