PITSILLOS (N° 1) v. CYPRUS
Inadmissible
Christos Rozakis
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. 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. 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”.