AS TO THE ADMISSIBILITY OF
Application no. 10240/03
by Theodoros NIKOLAOU
The European Court of Human Rights (First Section), sitting on 12 January 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 above application lodged on 12 March 2003,
Having deliberated, decides as follows:
A. The circumstances of the case
The applicant, Mr Theodoros Nikolaou, is a Cypriot national who lives in Limassol. He is represented before the Court by Mr E. Efstathiou, a lawyer practising in Nicosia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and his daughter were co-owners of a plot of land (plot no. 162/1) in the village Ayios Tychonas in the Amathunda district of Limassol. This plot was classified under the Antiquities Law as being of archaeological importance and was within the ambit of a town planning zone subject to building restrictions; namely, only 10% of the land could be built on for the purpose of protecting antiquities in the area.
Following a notice of expropriation (No. 124) issued on 29 January 1988, an order of expropriation (No. 1335) was published in the Official Gazette of the Republic of Cyprus on 26 August 1988 pertaining to the applicant’s plot.
The authorities offered the applicant and his daughter the amount of 30.000 Cyprus pounds (CYP) plus interest, as compensation for the expropriation of their property. They accepted the amount of money but reserved their rights to lodge an action before the domestic courts concerning the assessment of the amount of compensation since they considered that the amount given did not correspond to the value of their property.
1. Proceedings before the District Court of Limassol
On 23 February 1989 the applicant and his daughter lodged a civil action with the Limassol District Court for the assessment of the compensation (action no. 9/89). The evidence that was presented by the expert witnesses of the parties essentially differed with respect to the determination of the market value of the property on the date of expropriation. On the one hand, the applicant’s expert maintained that even if the property was situated in a specific planning zone, it should be compared to similar plots of land sold outside that zone and that he should be compensated for the building restrictions that brought about a reduction in the value of the land. He assessed the value of the property at CYP 204,800 on the basis of comparative sales of properties that were situated in different planning zones with fewer building restrictions and applying an annual increase of 17% in the value of the land. On the other hand, the Government’s expert compared the property to those sold within the same planning zone and applied an annual increase rate of 5% for the relevant period. Accordingly, he assessed the compensation at CYP 30,000.
In its decision of 2 March 2001 the district court rejected the applicant’s arguments. In particular, the court considered that the comparative sales used by the Government’s expert as a basis in assessing the market value of the land and the increase in property prices within that particular zone more accurate and credible. It stated that the applicant’s expert had not substantiated the amounts and rates he proposed and had failed to provide the court with the necessary evidence in the determination of a precise and fair amount. In this connection the court considered that the elements on which the applicant’s expert based his assessment of the market value of the property could not be regarded as safe in view of the fact that all the comparative sales related to properties within different planning zones with fewer building restrictions. The court could not rely on such comparative sales for the purposes of determining the value of the property.
Further, the court noted that it had not been shown that the inclusion of the property in the particular planning zone brought about the diminution in its value but, on the contrary, it observed that both the applicant’s and the Government’s expert agreed that there had been an annual increase for the period from 1981 and 1990, although they had put forward different percentages in this respect.
In the district court’s view, the Government’s expert had been concise and relied on comparative sales of properties with approximately the same physical and legal features and that had taken place around the same time the notice of expropriation of the applicant’s land had been published.
The district court therefore upheld the compensation that had been granted by the Government.
On 6 April 2001 the applicant lodged an appeal with the Supreme Court challenging the above judgment and, in particular, the method adopted for the assessment of the compensation.
2. Proceedings before the Supreme Court
The applicant appealed to the Supreme Court challenging the findings of the district court. The applicant, inter alia, also argued that the first instance court had not properly interpreted and applied the domestic case-law, particularly, the judgment in the case Attorney-General of the Republic v. Kouloumos, ((1995) 1 A.A.D 728), concerning the compensation to be given for the reduction in the value of the land due to imposed limitations.
On 13 September 2002 the Supreme Court rejected the appeal upholding the first instance judgment and the compensation awarded thereby.
The Supreme Court, among others, noted that the property at issue could not be compared with properties situated in a different planning zone with fewer building restrictions and that no evidence had been put forward to show that the inclusion of the property in the particular planning zone had resulted in a reduction in its value. As regards the latter therefore, the court considered that the case of Attorney-General of the Republic v. Kouloumos were not applicable in the present case. In this context the court referred to its findings in the case of Michael I. Charalambous v. Attorney-General of the Republic, (Appeal no. 10891, judgment of 21 December 2001) that the inclusion of property in a particular zone did not automatically mean a reduction in its value or establish a right to compensation, since it could facilitate its building development, enhance its development opportunities and thus, contribute to an increase in its value.
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.”
Section 10 of the Compulsory Acquisition of Property Law, 1962 as amended by Law, N. 25/83, sets out the criteria and principles for the purposes of determining fair and equitable compensation for the expropriation of property. Paragraph (g) of that section as amended by Article 6 of Law, N. 25/83, provides as follows:
“(g) in the case of acquisition of immovable property the value of which has been affected by the imposition of any restrictions or limitations under the provisions of the Antiquities Law or any other Law, account shall be taken of any compensation which may be deemed payable in accordance with the provisions of Article 23 of the Constitution”.
In the case of Attorney-General of the Republic v. Kouloumos (1995) 1 A.A.D 728, the Supreme Court held that the abovementioned provision required that in the assessment of the compensation for the expropriation of property, the compensation which would be granted in accordance with Article 23 of the Constitution for the restrictions imposed on the property by the Antiquities’ Law or any other law, should also be added. The intention of the legislator, as expressed by Article 6 of the Compulsory Acquisition (Amending) Law, N. 25/83 and in conformity with Article 23 of the Constitution, was to award compensation to the owner by way of a fair and equitable amount representing the value of the property of which he had been deprived by reason of administrative decisions.
With regard to planning zones, the Supreme Court in the case of Michael I. Charalambous v. Attorney-General of the Republic, Appeal no. 10891, judgment of 21 December 2001, found that they constituted a limitation in the meaning of Section 10 (g) of the Compulsory Acquisition of Property Law. However, the Supreme Court, noting that it had not been shown that the inclusion of the property in question in the particular planning zone had brought about a reduction in the value of the expropriated land, held that the inclusion of property in a specific planning zone did not automatically bring about a reduction in its value, nor did it establish a right to compensation on the basis of Article 23 of the Constitution. It was possible that the inclusion of immovable property in a planning zone could facilitate its building development, enhance its prospects of development and thus contribute to an increase in its value. The value of the land was directly affected by the planning zone in which it was listed since its development potential was directly linked to its value. Therefore, the relevant property could not be compared to other properties in different planning zones.
1. The applicant complained under Article 6 of the Convention about the excessive length of the proceedings before the Cypriot Courts.
2. The applicant further complained about his property rights under Article 1 of Protocol No. 1. In particular he claimed that the compensation granted in respect of the expropriation did not correspond to the value of his land and that the method of assessment of the compensation adopted by the domestic courts was incorrect. In this respect, he maintained that the development restrictions imposed on his property had not been taken into account as an autonomous factor for the assessment of the compensation, in breach of both Articles 6 and 1 of Protocol No. 1.
1. The applicant complained that the excessive length of the civil proceedings before the Cypriots courts violates the reasonable time requirement under Article 6 of the Convention, which in so far as relevant reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant complained of a violation of his property rights under Article 1 of Protocol No. 1. In particular, he claimed that he was not paid adequate compensation and that the method adopted by the domestic authorities in assessing that compensation was incorrect. In this connection, and also invoking Article 6 of the Convention, he maintained that the development restrictions imposed on his property had not been considered as an autonomous factor.
The Court considers that the latter part of the complaint falls to be examined only under Article 1 of Protocol No. 1, which provides 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.”
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).
In the particular circumstances of the instant case, the Court finds no indication that the courts failed to consider the arguments put forward by the applicant’s expert as regards the criteria to be used for estimating the market value of the expropriated land. 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.
The Court observes that the expert witnesses of the parties used a different basis of comparison for the assessment of the market value of the property, resulting in a substantial difference between the sums proposed as compensation. After examining the evidence submitted by the experts, the district court considered the comparative sales used for assessing the market value of the land and the increase in property prices within that particular zone by the Government’s expert as more accurate and credible. These findings were upheld by the Supreme Court that affirmed that the determination of the value of the property could not be made on the basis of comparative sales of properties situated in other planning zones with fewer building restrictions.
Furthermore, no evidence had been submitted establishing that the inclusion of the property in the particular planning zone had resulted in the diminution in its value. In this connection, the courts noted that both experts had ascertained an increase in the property’s value. It was on this basis that Supreme Court found that the case of Attorney-General of the Republic v. Kouloumos was not applicable in the instant case.
Having regard to all the foregoing factors and bearing in mind the wide 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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings under Article 6 § 1;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
NIKOLAOU v. CYPRUS DECISION
NIKOLAOU v. CYPRUS DECISION