SAHAP v. CYPRUS
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
1. The applicant, Ms Hatice Sahap was born in 1930 and lives in Larnaca. She was represented before the Court by Mr Z. Necatigil and Mrs S. Karabacak, lawyers practising in Lefkosa and Nicosia. 2. Since 1952, the applicant has owned plots of land in the Republic of Cyprus. In 1974, she fled north to the area occupied by Turkey, where she has lived ever since. The applicant discovered in 2003 that part of her property was occupied by the Water Department, a weighing station and a private company; a road had also been built across the plot. She found that in 1994 part of the land had been compulsorily acquired by the Government for the purpose of building the road. 3. The applicant brought proceedings for compensation for the land subject to compulsory acquisition (case no. 205/2003). On 18 February 2008, the District Court of Larnaca delivered judgment in her favour, ordering the Government to pay 512,580 euros in compensation for the compulsory acquisition, with costs and interest until final payment. 4. The applicant’s lawyer made repeated unsuccessful requests for payment. 5. The relevant laws, including Law 139/191 and relevant case-law on application of the legislation, are set out in Kazali and Others v Cyprus (no. 49247/08 et al, §§34-100, decision of 6 March 2012). The provisions in issue in the present case are set out below. 6. This provides: “The payment of any sum due to an owner of Turkish-Cypriot property in relation to such property is suspended during the abnormal situation which exists in the Republic of Cyprus by reason of the Turkish occupation.” 7. Law 139/1991 was amended by Law No. 39(1) of 2010, published in Official Gazette no. 4240 of 7 May 2010, by the insertion of additional provisions. The following was inserted at the end of section 3: “Provided that in the exercise of his above authority to administer Turkish-Cypriot properties during the abnormal situation the Minister also has the power as custodian, to lift by duly reasoned decision and under terms which are in his judgment appropriate the custodianship concerning particular Turkish-Cypriot property or part of it, after taking into account in connection with the administration the situation and circumstances of each case and weighing all factors relevant to this matter, including whether the Turkish-Cypriot owner of the property or his heirs or successors in title, as the case may be, occupy property belonging to a Greek-Cypriot in the areas not under the Republic’s control: Provided further that inter alia the following factors weigh in favour of lifting the Custodianship of Turkish-Cypriot property– (a) that the matter concerns the administration of property which at the time it came under its regime of custodianship, its Turkish-Cypriot owner had ordinary residence abroad where he had gone at any time before or after the Turkish invasion of 1974, and the said owner continues to reside there or has returned or intends to return from abroad for permanent settlement in the Government controlled areas of the Republic, (b) that the matter concerns the administration of property which at any time after it came under its regime of custodianship by the Custodian the Turkish-Cypriot owner of the property settled permanently in the Government controlled areas of the Republic and continues to be constantly settled there permanently , (c) that the property under administration concerns a house which its TurkishCypriot owner was living [in] and occupying before the Turkish invasion of 1974 and intends to live in it upon his coming from the occupied areas for permanent settlement in the Government controlled areas of the Republic.” 8. A new section 6A was inserted into the Law: “(1) Violation of a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ratified by Law, owing to the application of a provision of this Law, is actionable. (2) A person alleging violation of any right guaranteed by the above Convention and or its Protocols owing to the application of a provision of this Law in his case, is entitled, in case of rejection of his relevant claim by the Minister, to have recourse to the district courts by way of action brought against the Republic and the Custodian for the alleged violation, and to claim for the violation the remedies provided for in this section: Provided that where the remedies sought include a claim by the owner for an order of the court that his property under custodianship under the provisions of this law be restored to him, the action is also directed against the person lawfully in occupation of the property. (3) In determining in an action under sub-section (2) whether the plaintiff’ (4) Where in an action under this section the court determines that the plaintiff’s right was violated, he is entitled in the action: (a) to compensation for any pecuniary damage, loss, costs, and expenses actually incurred on account of the violation, (b) to compensation for non-pecuniary damage or injury sustained on account of the violation, (c) to legal costs actually incurred by him on account of the violation, (d) to the issue of a binding order of recognition of right under the Courts of Justice Laws, (e) to any other remedy that the court has power to grant in exercise of its civil jurisdiction under the Courts of Justice Laws or any other law for the time being in force, or the applicable general principles of law. (5) For ascertaining the damage attributable to the violation as provided for in subsection (4) and assessing and awarding compensation under the said sub-section, the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they transpire from its case-law in cases of violation of the right concerned which is guaranteed by the above Convention or its Protocols. Where in an action under this section the court issues an order for the restoration to the plaintiff of property under custodianship, the Custodian and the property’s lawful occupier are entitled in the action by relevant respective counterclaims against the plaintiff, to any amounts of costs that each has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law: Provided that the said right of the lawful occupier is only for costs of repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission. (7) Where the Custodian for purposes of compliance with a judgment by the court in an action under this section decides to lift the custodianship of Turkish-Cypriot property, he is entitled by action against the owner in whose favour the said judgment was issued, or against his heirs or successors in title, as the case may be, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law while it was under custodianship: Provided that a person lawfully in occupation of the said property at the time of the judgment of the court or of the above decision of the Custodian and subsequently forced to abandon it as a result of the court judgment or the lifting of its custodianship, is entitled by action against the above owner, his heirs and successors in title, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission whilst he was in occupation.”