AS TO THE ADMISSIBILITY OF
Application no. 13010/03
by Andriana PAVLOU
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 11 April 2003,
Having deliberated, decides as follows:
A. The circumstances of the case
The applicant, Mrs Andriana Pavlou, is a Cypriot national who was born in 1934 and lives in Limassol. She is represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the owner of a plot of land (no. 149) in Ayios Tychonas in the Amathunda district of Limassol. The plot, which is very close to the beach, had been classified in 1935 under the Antiquities Law as being of archaeological importance and, since 1974, came 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.
The Government decided to expropriate the property for archaeological reasons. The notice of expropriation was published on 21 March 1986 and the order of expropriation on 4 July 1986.
The applicant was paid the amount of 16,060 Cypriot pounds (CYP) plus interest as compensation for the expropriation. However, she reserved her right to apply to the district court for the determination of the compensation.
1. Proceedings before the District Court of Limassol
In November 1990 the applicant lodged a civil action with the District Court of Limassol (action no. 56/90).
In its judgment of 25 February 1997 the district court found that the value of the property amounted to CYP 25,000.
2. Proceedings before the Supreme Court
The applicant lodged an appeal before the Supreme Court. In its judgment 27 September 1999 the Supreme Court decided that the judgment of the district court was not duly reasoned and ordered a retrial.
3. Retrial proceedings before the District Court of Limassol
The case went back to the district court of Limassol for a retrial. The evidence presented by the expert witnesses of the parties before the district court essentially differed with respect to the determination of the market value of the property on the date of expropriation in 1986. On the one hand the applicant’s expert in his report assessed the value of the property treating it equally with other similar properties on the beach which had not been affected by the archaeological zoning. He valued the property at 40,000 Cyprus pounds (CYP) plus interest and at CYP 60,000 if the property had not been within the archaeological zoning. He thus considered that there would be an increase of CYP 20,000 in the property’s value if these restrictions had not been imposed. He also adopted an annual increase of 20 % in the market value of the property on the basis of two comparative sales of properties that were situated in different planning zones with fewer building restrictions. 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 16,060.
In its decision of 5 April 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 the elements on which he based his assessment of the market value of the property could not be regarded as safe in view of the fact that he had mainly used comparative sales related to properties within different planning zones with fewer building restrictions.
The court noted that the inclusion of property in a particular planning zone constituted one of its legal features and thus, the determination of its value had to be made on the basis that it belonged to that particular zone. It could not therefore be compared to other property situated in another zone that did not have the same legal features. The inclusion of property in a specific planning zone constituted an administrative act the legality or validity of which could be challenged by way of recourse to the Supreme Court on the basis of Article 146 of the Constitution. Therefore, the reasons for which the property had been included in that planning zone could not be taken into account in the determination of compensation or constitute a lawful basis for its increase.
Although, the applicant’s expert had used one comparative sale concerning property in the same planning zone, the court noted that he had not made any adjustments to take into account the different physical features of the properties.
Further, the court noted that it was not shown that the inclusion of the property in the particular planning zone brought about a material diminution in its value but, on the contrary, it observed that both experts agreed that there was an annual increase for relevant period, although they put forward different percentages in this respect.
In this context the district court judge also stated that in the event that the applicant would wish to sell the property, a potential purchaser would take into account the fact that it was in the particular planning zone. Consequently, since its sale in the open market would be reduced, because of its inclusion in the particular zone, the fact of expropriation did not entitle the applicant to claim a higher amount of damages. The court then went on to observe that the applicant’s expert had not explained how and on what criteria he had assessed the additional compensation of CYP 20,000 due to the effects of the restrictions that had been imposed, resulting in the determination of the market value of the property at CYP 60,000. The court considered that the expert’s conclusions in this respect were vague and unsubstantiated.
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 or had made the necessary adjustments, where there were differences between the properties.
The district court therefore upheld the compensation that had been granted by the Government.
4. Proceedings before the Supreme Court
The applicant appealed to the Supreme Court challenging the findings of the district court. Amongst others, the applicant 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 14 October 2002 the Supreme Court upheld the judgment of the district court and the compensation awarded thereby.
The Supreme Court in its examination of the appeal considered Article 23 of the Constitution which guarantees the right to property and the domestic jurisprudence relating to the assessment of compensation, including the criteria relating to the reduction in the value of the property due to restrictions imposed by law. 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. The Supreme Court confirmed the district court’s findings that in the instant case there was no issue of a reduction in the value of the property since the parties’ experts had ascertained an increase. Therefore the case of the Attorney-General of the Republic v. Kouloumos was not applicable in the present case. The Supreme Court then went on to say that although it did not share the first instant judge’s opinion that in view of the reduction of the property’s sale in the open market due to its inclusion in the planning zone, the expropriation did not entitle the applicant to a higher award of damages, it would not examine it, as the matter of reduction in the property’s value was not in question.
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 of a violation of her property rights under Article 1 of Protocol No. 1. In particular, she complained that the compensation granted by the domestic courts did not correspond to the value of her expropriated land, a fair balance thus not being struck between the demands of the general interest of the community and the requirements of the protection of her property rights. She also contended that the said expropriation did not comply with the conditions provided for by law in that just and equitable satisfaction had not been awarded given that the fact that the value was reduced by the adverse zoning had not been taken into account in the assessment of compensation.
3. Finally, the applicant complained under Article 13 about the lack of an effective remedy in respect of her property rights. In this connection, she referred to the inability of the district court and the refusal of the Supreme Court to even comment on the wrong interpretation of the law concerning the diminution in the value of her property due to the imposed restrictions.
1. The applicant complained that the excessive length of the civil proceedings before the Cypriots courts violated 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 her property rights under Article 1 of Protocol No. 1. In particular, she claimed that she had not been paid adequate compensation for the expropriation of her property and that the amount given was not that of the open market without zoning restrictions but rather that resulting from a reduction due to adverse zoning, contrary to the provisions of the Compulsory Acquisition of Property Law, 1962, as amended. 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.”
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 her 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. In this regard, the Court notes that the inclusion of the property in question in the restrictive planning zone had never been challenged.
Furthermore, the applicant’s expert had not substantiated if and to what extent the inclusion of the property in the particular planning zone had reduced its value. In this connection, it was found that his conclusions were vague and unsupported and that both parties’ experts had actually 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. Since no issue arose in the case concerning reduction in the value of the property, it did not proceed to examine the matter.
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.
3. The applicant complained under Article 13 the lack of an effective remedy in respect of her property rights. In this connection, she referred to the inability of the district court and the refusal of the Supreme Court to even comment on the wrong interpretation of the law. The relevant provision reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court recalls that a complaint may only be made under Article 13 in connection with a substantive claim which is “arguable” (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 24, § 54). The Court has found that the applicant’s complaint under Article 1 of Protocol No. 1 is manifestly ill-founded. It thus finds that the claim cannot be said to be arguable within the meaning of Convention case-law.
Accordingly, this part of the application is also manifestly ill-founded within the meaning of 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
PAVLOU v. CYPRUS DECISION
PAVLOU v. CYPRUS DECISION