Communicated on 19 January 2021 Published on 8 February 2021

THIRD SECTION

Application no. 80777/17 Eleni DAMIANOU CHARALAMBIDE against Cyprus lodged on 20 November 2017

STATEMENT OF FACTS

The applicant, Ms Eleni Damianou Charalambide , is a Cypriot national, who was born in 1949 and lives in Limassol. She is represented before the Court by Mr A. Demetriades and Mr P. Faidonos , lawyers practising in Nicosia and Limassol respectively.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the registered owner of a plot of land with registration no. 04-1 (former 8747), plot 1 (former 404, previously 61/2), Plan/Sheet 2 ‑ 210 ‑ 341 (former LIV/45) (“the property”).

On 26 May 1978 a notice under section 12 of the Streets and Buildings Regulation Law 1946, as amended, (Cap. 96) (hereinafter, “Cap. 96”) was published in the official gazette of the Republic of Cyprus (Κ.Δ.Π. 994) concerning a street-widening scheme under Cap. 96 and which affected 493 sq. m. of the applicant ’ s property.

On 8 July 1987 the applicant obtained under Cap. 96 a building permit no. 004114 according to the terms of which 473 sq. m. from the total of 2357 sq. m. of the property would be subjected to a street-widening scheme and granted to the State for that purpose.

The applicant reserved the right to challenge the imposed terms and seek damages. She nonetheless developed the property in accordance with the terms of the building permit without challenging them.

On 12 October 2001 the Government published a notice of acquisition for the said 473 sq. m. under the Compulsory Acquisition of Property Law of 1962 (No. 15/1962), as amended (hereinafter “the Compulsory Acquisition Law”).

On 11 October 2002 the Government expropriated the same 473 sq. m. originally affected by the street-widening scheme through a compulsory acquisition order, on the basis of the Compulsory Acquisition Law. A requisition order was also issued (Δ.Π. 993/12.10.2001).

The authorities offered the applicant 100 Cyprus pounds (CYP) which she accepted without prejudice to her right to bring proceedings seeking further compensation. She did not receive the said amount.

On 25 November 2003 the applicant filed an application (αρ. 61/2003) with the Limassol District Court concerning the determination of the amount of fair and reasonable compensation for the compulsory acquisition of her property.

The parties agreed, inter alia, on the market value of the property; that the property remained registered in the applicant ’ s name; and that there was neither betterment nor hardship caused to the remainder of the property by virtue of the expropriation. The parties lastly agreed on the costs of the procedure as follows. In the event that the court set the amount for damages to CYP 100 – as already offered by the Government - then EUR 3000 would be awarded to the applicant as costs incurred by her for the expert valuation of the land. In the event that the court dismissed the case, then 2/4 of the legal costs calculated by the Registrar would be awarded to the applicant, plus costs incurred for the expert evaluation and legal fees. These facts were declared before the court as agreed and binding between the parties.

The court was left to determine mainly: (a) whether compensation was payable to the applicant in view of the fact that the expropriated part of the property was subjected to a street widening scheme; and, (b) in the affirmative, whether such compensation amounted to the agreed amounts of ( i ) EUR 113,144 from the notice of acquisition of 12 October 2001 plus interest, or (ii) EUR 567,600 from 17 November 2009 (the date of an updated valuation by an expert of the Land Registry) plus interest.

On 31 January 2011 the Limassol District Court held that the fact that the applicant had failed to challenge the terms of the building permit did not affect her right to seek damages in accordance with section 13(1) of Cap. 96 and Article 23 of the Constitution for the expropriation of her land. It further held that, the applicant was deprived of 21% of her property as a result of the expropriation, suffering a substantial decrease in its value which was to be compensated to her under Article 23 of the Constitution, despite the fact that the said land had been granted to the State pursuant to the terms of the building permit. The court also added that considerable time had passed between the date of the notice for acquisition and the examination of the damages to be granted to the applicant, as a result of which she had to bear a disproportionate burden. The court thus granted the applicant EUR 567,600 in damages plus interest at 9% until the payment of the said amount, plus costs.

On 23 February 2011 the Government filed an appeal (αρ. 61/2003) with the Supreme Court.

On 30 May 2017 the Supreme Court upheld the appeal considering that the applicant was in principle not entitled to any compensation given that the 473 sq. m. had been part of a binding street-widening scheme of 1978 governed by Cap. 96, and that she had never challenged the corresponding terms accompanying the building permit, according to which she was prevented from developing that part of her land which would be granted to the State for the purposes of the existing street-widening scheme. The applicant developed her land in accordance with the terms of the building permit and in essence consented to the terms. At the time of the expropriation she had therefore not suffered a limitation pursuant to section 10(η) of the Compulsory Acquisition Law or section 13(1) of Cap. 96 justifying the award of compensation and even less at the market value of the property at the time of the expropriation. According to the Supreme Court, the applicant missed the time-limit for challenging the building permit and tried to take advantage of the passage of time by challenging the amount of damages proposed by the Government.

Lastly, the Supreme Court granted the applicant EUR 170,85 (the equivalent of CYP 100) as compensation but ordered her to pay the costs of the entire domestic proceedings.

The relevant Articles of the Constitution provide as follows:

Article 23

“(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 entering into force 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.”

Article 146

“(1) The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a claim filed with 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.”

Lastly, Article 188 § 1 of the Constitution provides that any other law which was in force at the time of the proclamation of the Republic, will apply while being adjusted ‘ to the necessary extent to the Constitution ’ . The term adjustment includes any amendment, alignment and repeal.

The relevant sections of this law provide as follows:

Section 3 § 1 – Layout, etc., of streets and erection, etc., of buildings prohibited without permit of appropriate authority

“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).”

Section 12 – Special provisions relating to widening or straightening schemes

“(1) Notwithstanding any provision contained in this Law, an appropriate authority may, with the object of widening or straightening any street, prepare or cause to be 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 appropriate authority shall deposit such plans in its office and shall also cause a notice to be published in the Gazette and in one or more local newspapers to the effect that such plans have been prepared and deposited in its office and are open to inspection by the public and such plans shall be open to the public for inspection, at all reasonable times, for a period of three months 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 by the Council of Ministers on appeal as in section 18 of this Law, become binding on the appropriate authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans.”

Section 13 – Space between new and old alignments to be part of street

“(1) Where a permit is granted by an appropriate authority and such permit entails a new alignment for 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 such street without the payment by the appropriate authority of any compensation whatsoever:

Provided that, if it is established that hardship would be caused if no compensation were paid, the appropriate authority shall pay such compensation as may be reasonable having regard to all the circumstances of the case.

(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.”

Section 10 – Principles for the calculation of damages

“10. Compensation payable for compulsory expropriation shall be calculated in accordance with the following rules:-

(α) subject to the following provisions, the value of the property shall be deemed to be substantially equal to the amount that such property would yield, had it been sold voluntarily on the free market at the time of the notice of acquisition;

[...]

(η) in the event of the expropriation of immovable property whose value has been affected due to the imposition of any limitations, in accordance with the Antiquities Law or any other Law, any compensation which could be considered payable in accordance with the provisions of Article 23 of the Constitution, shall also be taken into account (υπ ολογίζετ αι);”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 about the expropriation of a part of her land without compensation.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies? In particular, in light of the fact that the Supreme Court granted the applicant 170,86 EUR (100 CYP) in compensation, is it open to the applicant to seek compensation through civil proceedings by means of section 13(1) of the Streets and Buildings Regulation Law (Cap. 96) in conjunction with Article 23 and Article 188 of the Constitution, taking into account any relevant provisions on prescription?

2. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, the parties should specify with reference to the domestic case-law and the Court ’ s case law whether the interference has been in accordance with the conditions provided for by law within the meaning of Article 1 of Protocol No. 1. More specifically, did the interference take place:

(a) on the basis of section 13 of the Streets and Buildings Regulation Law (Cap. 96), namely by automatic operation of the law at the time the building permit was granted on 8 July 1987; or

(b) on the basis of the terms of the said building permit; or

(c) on the basis of the order of the Compulsory Acquisition of Property Law (No. 15/1962), published in the official gazette of the Republic of Cyprus on 11 October 2002; or

(d) on any other basis at any other point in time?

3. In connection with the above, did the decision of the Supreme Court comply with the requirements of lawfulness set out by Article 1 of Protocol No.1?

4. In view of the compensation ordered by the Supreme Court and the fact that the applicant was ordered to pay the costs of the proceedings, did the Supreme Court place an excessive burden on the applicant, upsetting the fair balance which must be struck between the general interest of the community and the fundamental rights of the individual (see, mutatis mutandis , Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, § 93, ECHR 2005 VI)?