CASE OF SERGHIDES AND CHRISTOFOROU v. CYPRUS
Violation of P1-1;Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to access to court;Just satisfaction reserved
8. In 1959, the applicant acquired freehold ownership of plot 565, Nicosia, with a frontage on Jason Street, which is now called Georgios Grivas Digenis Avenue. She was also issued with a Certificate of Registration of Immovable Property by the Land Registry Office, Registration No. B662, dated 28 April 1959. The surface area of plot 565 was 23,488 square feet. On 16 September 1959 the applicant leased plot 565 to Mobil Oil Cyprus Ltd. On 7 October 1959 Mobil, in its capacity as the representative of the applicant, applied to the municipality of Nicosia and obtained a building permit for the construction of a petrol-station, a carwash and other ancillary structures. In 1969 the lease was renewed until September 1973, with the option to extend until September 1977. In paragraph 1 of the third page of the lease, the rented property was described as being “situated at Grivas Digenis Avenue on plot 565”. Paragraph 5(e) of the lease provided that the landlord authorised the tenant as her agent to sign all applications concerning the plants and works which Mobil would construct, reconstruct, operate and continue to operate on the plot, and generally to do all things necessary on her behalf. 9. On 30 March 1973, Notice No. 612 was published in the Official Gazette of the Republic No. 1002, pursuant to the Streets and Buildings Regulation Law, Cap. 96, by the Municipal Committee of Nicosia, aimed at widening Grivas Digenis Avenue. 10. According to the text of paragraph 1 of the Notice, the affected plots were the following: all plots with frontage on a certain specified part of the Avenue (that is, the part of the Avenue between Prodromos Street and Th. Dervis Street) and certain plots with frontage on both the Avenue and other side roads. (The numbers of these “corner plots” were expressly set out in the Notice.) 11. However, the Notice did not mention that plot 565 was part of the land taken for the widening of the street. 12. The Notice provided that any objection against the widening scheme should be raised within seventy-five days of the publication of the Notice in the Official Gazette. 13. On 11 July 1973, Mobil filed with the Municipality an application for a building permit to make minor alterations to a station built in 1959, the pumps’ shelter and an oil ditch. The distance of the new construction from the newly aligned Grivas Digenis Avenue was more than 10 feet, the distance required by Regulation 6(3) of the Streets and Buildings Regulations. 14. Upon receipt of the application, the Municipality addressed to the applicant, through her duly authorised agent, a letter dated 24 July 1973. It was expressly provided in that letter that the plans of the street-widening scheme relating to the Grivas Digenis Avenue should be taken into account. A copy of the official plan which showed the effect of the street-widening scheme was attached to the letter. 15. According to the Government neither the applicant nor Mobil protested. 16. On 27 March 1978 the building permit was issued. By letter of 28 March 1978, the Municipality of Nicosia requested the Office of the Land Registry and Survey to register as part of the public domain, by virtue of section 13 (1) of the Streets and Buildings Regulation Law, Cap. 96, the part of plot 565 affected by the street-widening scheme. At some time between 1978 and 1979, the District Land Registry Office of Nicosia registered the disputed area of 2,060 square feet as part of Grivas Digenis Avenue. 17. According to the applicant, the Government Survey Plan and the applicant’s title were amended without anyone notifying her. In the Land Register, the ceding of the disputed area to the road was described as follows : “By purchase from the Government after compulsory acquisition + By grant. A public road. Fees: gratis”. The applicant alleges that she was never notified about this amendment of the Register which contains a false declaration. Moreover, Mobil was never notified, as no mention of the expropriation was made in the conditions attached to the building permit which had been granted. Even the letter sent to Mobil on 24 July 1973 only stated that the street-widening scheme would have to be taken into consideration, giving no specific indication that the disputed area would be compulsorily ceded to the road. 18. Although the street-widening plan was made in 1978, the actual widening was not effected until September 1989. On 5 September 1989 Notice of Acquisition No. 1391 was published in Gazette No. 2439. Again, however, the applicant’s plot did not appear to be affected. According to the Government, this was due to the fact that the part of the plot affected by the street-widening scheme had already become part of the street through the earlier procedure, pursuant to sections 12 and 13 of the Streets and Buildings Regulation Law, Cap. 96. 19. The applicant claims that the first time she became aware of the situation was after receiving a Government Survey Plan on 4 September 1989 which she had requested from the Land Registry for the purpose of filing an objection to taxes imposed on some of her immovable property. 20. As the original 1959 registration certificate for plot 565 was lost, the applicant requested a further official copy, which she received on 30 December 1992. However, the certificate had been changed in relation to the surface area of the plot and contained the declaration – “Mode of Acquisition: By virtue of purchase by the Government after Compulsory Acquisition and by virtue of cession to the public road”. 21. On 17 November 1989 the applicant lodged an application with the Supreme Court of Cyprus, sitting at first instance, against both the Municipality of Nicosia and the Republic. She asked the court to declare the Land Registry’s Office decision to take away 2,060 square feet of her land, as well as the decision to declare that piece of land to be part of a public road, void and without any legal effect. The applicant invoked Article 23 (2) and (4) of the Constitution (see Relevant Law below). 22. On 22 January 1990 the application was fixed for directions before the Supreme Court on 16 March 1990. On 23 January 1990 the Republic filed its opposition. On 16 March 1990 the court directed the Municipality to file its opposition by 23 April 1990. On that date as well as on 15 May 1990 and 11 June 1990, the Municipality applied for consecutive extensions. The applicant’s lawyer stated on each occasion that he did not object. On 20 June 1990 the Municipality filed its opposition. On 19 September 1990 the applicant filed her observations. On 6 December 1990 and 8 February 1991 the Republic and the Municipality applied for an extension of the time-limit for filing their observations in reply. These observations were filed on 14 April 1991 and 8 May 1991. On 12 June 1991 and 13 September 1991 the applicant’s lawyer was granted two further extensions for submitting additional observations. 23. On 22 January 1992 the Supreme Court reserved its decision, which was not rendered until 2 February 1993. 24. On 8 December 1992 the applicant transferred the ownership of plot 565 to her children by way of donation. According to the relevant Declaration of Transfer submitted by the Government, she transferred the totality of her legal title in plot 565 without any reservation whatsoever. This fact was not brought to the knowledge of the Supreme Court by the applicant. 25. According to the applicant, as she was seriously ill, she transferred the ownership of 21,428 square feet of land out of the total 23,488 square feet which she had originally held in 1959, with a half share to each to her two children – Mrs A. Christoforou and Dr G.A. Serghides. The remaining 2,060 square feet which she did not transfer is the disputed area. The entry of this transfer in the Land Registry Office appears to have been made on 23 February 1993. 26. On 2 February 1993, the Supreme Court rejected the application as out of time, it having been filed more than seventy-five days after Notice No. 612 had been published in the Official Gazette. It held that the letter of 24 July 1973 to Mobil from the Municipality constituted sufficient notice. It further held that the acts and/or actions of the Municipality of Nicosia and the Republic of Cyprus as regards the expropriation of 2060 square feet of the applicant’s land were not executory administrative acts, and thus could not be annulled by virtue of Article 146 of the Constitution. It concluded that the street-widening scheme did not amount to a deprivation of property but only to a restriction on property having regard to the total surface area of the property and the affected land. 27. On 9 March 1993, the applicant filed an appeal on points of law with the Supreme Court. 28. On 5 September 1996 the parties were notified by the Registrar that the appeal was fixed for hearing on 12 December 1996. On that date the lawyer for the Municipality applied for an adjournment of the hearing, to which the applicant’s lawyer did not object. On 20 January 1997 the Supreme Court adjourned the hearing for want of time. On 3 April 1997 the hearing commenced but was not completed. On 15 May 1997 then on 1 July 1997 the hearing was further adjourned upon applications made by the lawyers of the applicant and the Municipality respectively. The hearing was completed on 10 September 1997 and judgment was reserved. 29. On 27 February 1998 the Supreme Court dismissed the appeal on a procedural point, without examining the merits of the case. It held that, as the applicant had transferred her property, she no longer had locus standi in respect of the land taken by the Municipality in 1978. 30. In neither of the procedures before the Supreme Court did the applicant ever contend that she had had no notice of the publication of the street-widening scheme that affected her property. 31. The relevant Articles of the Constitution provide 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.” “The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this part.” “(1) The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a claim made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such an organ or authority or person. (2) Such a claim may be made by a person whose existing legitimate interest, which he has either as a person or by virtue of being a member of a community, is adversely and directly affected by such a decision or act or omission. (3) Such a claim shall be made within seventy-five days of the date when the decision or act was published or not published and, in case of an omission, when it came to the knowledge of the claimant.” 32. The relevant Sections of this law provide as follows: “In this Law alteration, addition or repair, when used with reference to buildings, means any structural alteration, addition or repair whereby any dimension of such building is altered ... building means any construction, whether of stone, concrete, mud, iron, wood or other material and includes any pit, foundation, wall, roof, chimney, veranda, balcony, cornice or projection or part of a building, or anything affixed thereto, or any wall, earth bank, fence, paling or other construction enclosing or delimiting or intended to enclose or delimit any land or space.” “No person shall (a) lay out or construct a street; (b) erect, or suffer or allow to be erected a building or demolish or reconstruct or make any alteration, addition or repair to any existing building, or suffer or allow any such demolition or construction or any such alteration, addition or repair to be made; (c) lay out or divide any land... into separate sites, (d) divide any building ... into separate tenements; (e) start to do any of works or matters herein-before set out without a permit first obtained from the appropriate authority as provided in subsection (2).” “(1) Notwithstanding any provision contained in this Law, a competent authority may, with the object of widening or straightening any street, prepare or have prepared plans showing the width of such a street and the direction that it shall take. (2) When any plans have been prepared under subsection (1), the competent authority shall deposit such plans in its office and shall also have a notice published in the Gazette and in one or more local newspapers and deposited in its office, open to inspection by the public at all reasonable times, for a period of seventy-five days from the date of the publication of the notice in the Gazette. (3) At the expiry of the period set out in subsection (2), the plans shall, subject to any decision of the Supreme Court after a claim is filed as provided for in section 18 of this law, become binding on the competent authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans.” “(1) Where a permit is granted by a competent authority and such permit entails the new alignment of any street, in accordance with any plan which has become binding under section 12 of this law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of that street without the payment by the authority of any compensation whatsoever: (2) When a permit is granted under subsection (1), the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remains unaltered.” 33. On 25 June 1976 the Supreme Court held that section 12 of the Streets and Buildings Regulation Law, Cap. 96, was not contrary to Article 23 of the Constitution, because it resulted only in the imposition of restrictions or limitations on the right of property and, particularly, on the use of such property for the purposes of building development, which were absolutely necessary in the interests of town and country planning within the meaning of Article 23 (3) of the Constitution (Neophytos Sofroniou and Others v. the Municipalty of Nicosia and Others judgment of 25 June 1975). 34. By a judgment of 23 May 1997 in the case of Kyprianides and Others v. the Municipality of Nicosia, the Supreme Court ruled that no claim for damages could be introduced when the disputed area was less than 15% of the original area. This judgment was subsequently confirmed in the case of the Attorney General v. F. Iacovides (Civil Appeal No. 9965, judgment of 29 September 1998). 35. As regards section 12(3), the Government affirm that the publication of such a scheme does not result in the acquisition by the competent authority of the part of the property affected thereby. It merely imposes restrictions and limitations upon future plans for the development of such property. If an application is made for the issue of a building permit in relation to such property, the permit must be in accordance with the plans of the streetwidening scheme. The provisions of section 13 come into play in the event of the issue of a building permit. Then the affected part of the property becomes part of the street. 36. The Government contend that it follows that in the present case the alleged expropriation of 2,060 square feet of the applicant’s land was not brought about by any administrative act or decision of the competent authority but by operation of law. The relevant statutory provisions operated automatically as soon as the building permit was issued, that is on 27 March 1978. The procedure that followed for the registration of the area was not an executory administrative act but merely an act of implementation because the said area had already become part of the street on the date on which the permit was issued. 37. The relevant sections of this Law provide as follows: “In the present Law ‘owner’ means the person entitled to be registered as the owner of any immovable property whether he is actually registered or not.” “No transfer or voluntary charge affecting any immovable property shall be made in the District Lands Office by any person unless he is the registered owner of such property ...” “The area of land covered by a registration of title to immovable property shall be the area of the plot to which the registration relates in any Government Survey Plan or any plan made to scale by the Director: Provided that where the registration cannot be related to any such plan, the area of land concerned shall be that to which the holder of the title may be entitled by adverse possession, purchase or inheritance.” “From and after the date of the coming into operation of this Law, every registration made and every certificate issued in connection with any transfer of land or building, or any devolution thereof by inheritance, shall be deemed to include all immovable property connected therewith to which the transferor or deceased was entitled.” 38. Section 4 of this law provides as follows: “Where any property is required to be compulsorily acquired for the purpose of a public benefit, the acquiring authority shall cause a notice of the intended acquisition in the form set out in the Schedule hereto ... to be published in the official Gazette of the Republic, containing a description of the property intended to be acquired, stating clearly the purpose for which it is required and the reasons for the acquisition, and calling upon any person interested in such property to submit to such authority within a specified time, being not less than two weeks from the date of the publication thereof, any objection which he may wish to raise to such acquisition ...” 39. The relevant regulations provide as follows: “(a) Judgments are delivered as soon as possible after the end of the proceedings and cannot be reserved for a period longer than six months. (b) If the Court fails to comply with the provisions of sub-paragraph (a), any concerned party may apply to the Supreme Court according to Regulation 5.” “If a decision which has been reserved ... [or] continues to be reserved for a period which exceeds nine months, the case is ipso jure fixed before the Supreme Court for the delivery of the order which is necessary in the circumstances, pursuant to Regulation 5 of the Regulations.” “In considering the application lodged according to Regulation 3, the Supreme Court may ... (b) make an order for the issue of the reserved judgment by a specific date and, in case of non-compliance, order a re-hearing by another court.” 40. Regulation 5(1) provides as follows: “The respondent may within twenty-one days from the service of the application, file with the registry and serve at the applicant’s address for service an opposition thereto ...”