SUPREME COURT OF CYPRUS
ANA THEORETICAL JURISDICTION
(Case No. 91/2008)
14 January, 2010
[EROTOKRITOU, D / facturer]
WITH RESPECT TO ARTICLE 146 OF THE CONSTITUTION
1. ANNA G. MARANGOU
2. NIKI C. MARANGOU
3. MARY C. MARANGOU
Applicant,
and
CYPRUS, THROUGH
1. MINISTER OF FINANCE AND
2. ADVOCATE GENERAL OF THE REPUBLIC
Application for the defendants.
Mr. Mavrantonis, for the applicant.
Mappouridis Mr. A., for the defendants in the application.
A P P A A A The
EROTOKRITOU, D. : The applicant was the owner of items 84 and 256 Kinyras Street in San Andreas in Nicosia. On 27.4.1990, published in the Official Gazette of the Expropriation Notice No. 611, which disclosed that several pieces, including the above two properties, owned by the applicant, was "necessary for the following purpose public benefit, ie housing government departments and the expropriation is necessary for the following reason for that is building new offices Nicosia District Government . "
On 15.2.1991 published in Official Gazette of the Expropriation Decree No. 213, which the Cabinet ordered the expropriation of real property contained in the Disclosure Schedule in Acquisition, excluding 5 pieces from all 15 items included in the Notification Table. In these do not include two pieces of the applicant. The beginning was alienate the Ministry of Finance.
Although the original purpose of the expropriation, as published in the relevant Notice of expropriation, was for the construction of new Government District Offices Nicosia and then plan foresaw the construction of the District Land Office of Nicosia and the Nicosia District Agricultural Office (Phase A of the project) The design of this, have never been implemented due to several reactions local residents and denial of the House of Representatives to pass the relevant item since the House by unanimous vote against the annual allocation in the budget for the Development of the project and the issue of building Government Offices District remained open.
The area of roads and Charalambos Kinyras Mouskou St. Andrew parish in the municipality of Nicosia, which are the two pieces fall from the first publication of the Local Plan Nicosia on 1.12.1990, the Multifunctional Centre Area Courts, which directly adjoins Dead Zone is one of the multifunctional center of the capital. Based in Nicosia Local Plan, in determining the location of major uses, which are designed to play an important role in the restoration and operation of the Urban Centre. The area is characterized by existing or planned public uses, as the Supreme Court, the District Court of Nicosia, the new Archaeological Museum (at the old Nicosia General Hospital), the Municipal Park Nicosia, Nicosia Municipal Theatre, the transplant center Paraskefaidio k . a
In June 2001, following a proposal by the Home Office to the Cabinet decided that the last, " provided that there is no legal impediment from the initial acquisition of the items referred to in paragraph 3 of the Offer, to approve in principle the exploited for the construction of the Central Offices of the Department of Planning and Housing. " The Prof 's consider a request that the construction of Central Planning Office, rather than governmental Nicosia District Office provided the initial notification of 1990, does not present any problem or conflict with Article 4 of the Compulsory Acquisition Law of 1962 (N.15/62).
After the above decision, the Department of Building and Housing, made approaches to planning and drafting plans for the construction of the new head office, on items included in the acquisition order.
Meanwhile, after an amicable settlement of claims, it became the property of the state by 4 pieces included in the expropriation decree No. 213, and between these two items (no. 84 and 256) which belonged to the applicant in paid the total amount of £ 302.000 in March 2003.
Subsequently, the applicant, by letter dated 6.10.2006, to obtain restitution of the land included in the acquisition order on the grounds that it has passed the statutory time period of 3 years and there has been no growth despite 17 years leaked.
The Finance Minister in his letter to the Minister of the Interior dated. 9.7.2007, as requested clarification whether the Home Office still considers cuts Marangos family as necessary to remain as state property.
The Minister of the Interior in his letter dated 7.11.2007, the Ministry of Finance informed that all pieces including pieces of the family Maragos, are essential for achieving the objectives of the Local Plan Nicosia.
Note that the decision to build the new headquarters of the Department of Planning and Housing in this area, caused by several reactions from the owners of the parcels included in the acquisition order, who have requested the revocation of the Order Acquisition and return of real property , citing abandonment of the purpose of expropriation, and changing the purpose by the administration. The owners of the pieces No. 265, 266, 267 and 268, are entered in the Supreme Court Action No. 710/2007, and the owner of the plot No. 255 was published for the Requisition Order, filed the appeal on No. . 1422/2007.
Because the applicant did not receive any answer, consider that the administration refuses to return their property, so with this action affects the administration's refusal to return their property, despite the fact that after 17 years the aim expropriation has not yet been executed. The Applicant efpaideftos lawyer promoted the following pleas: (1) that the refusal of government contrary to Article 150 (a) of the Compulsory Acquisition Law of 1962 (Law 15 (1) / 62), (2) that contrary in Article 23.5 of the Constitution and (3) that violates the judicial precedent.
Article 23 of the Constitution enshrines the right property. Disqualification can not be provided unless the article itself. In subsection (4) of Article 23, allows the Republic to expropriate property for coercive purposes set out in paragraph and compensation of the owner. Further, Article 23.5 provides that if not made within 3 years from the date of expropriation, the possible purpose of the apallotriosasa authority is obligated to offer the property by paying the purchase price, the person from whom the expropriation.
Article 23.5 was examined in several cases the Supreme Court. In case Kallis Cyprus Law (1998) 3 177 HRD , nomologithike that the words " if within three years after the acquisition is not possible to make toioutos purpose"does not imply that the purposes of expropriation should be made within the period of 3 years, but that can be made.Explained with reference to Kaniklides V . Republic and Others 2 RSCC 49 that the term " feasible "in Article 23.5"does not involve the sense of place, but might be done or achieved . " Therefore, failure to achieve the objectives of the acquisition within three years provided, that in itself does not indicate the purpose for which the expropriation is made impossible (see Tsaggaridou etc. Republic Act (1990) 3 HRD 3392 ).
In case Efthimiadis Zenon Estates Limited. (2006) 3 166 HRD reviewed by the full plenary of the law relating to Article 23.5 of the Constitution and especially the limits of feasible and unfeasible purpose of expropriation. By varying the voltage of the hitherto jurisprudence, said that the proper interpretation of section 5 of Article 23 should be consistent with the constitutionally guaranteed right of ownership. As mentioned: -
". The term has been possible to refer not to the subjective intentions or desires of the government but to the objective facts of the matter relating to the management actions to implement the project."
The Full House, sharing the concerns of Nicolaides, D. expressed in Case Law Symeonidis Republic Case. No. 641/99, dated. 15.9.2000 the restrictive way the law until then interpreted the concept as possible, explained: -
".. The reference to feasible realizable purpose of expropriation restores the correct wording of the constitutional criterion which makes the implementation of Article 23.5 to the continuing obligation of the administration to use the property for the purpose for which it was expropriated and thereby makes it continuously , and certainly not only within the period of three years from the acquisition, practicable feasible this purpose. To the question in other terms, namely whether the purpose of expropriation or egkateleifthi was not impossible, not just a change of emphasis, but carries the risk of straying from exploring the real objective data concerning the feasibility of achievable goal in a field not far beyond the subjective dispositions of administration with similar consequences. As the resulting modulation of the level of required management actions, the results of any individual case. The weight of the former owner is not to prove that the purpose of expropriation or egkateleifthi could not reach, but that the administration has failed to take those steps, depending of course the case will ekrinonto reasonably necessary to implement the project. The clear terminology of Article 23.5 of reflecting our understanding of the essential dimension as we have expressed. "
In this case, it is clear from the facts that are admitted, that the administration after over 17 years, has decided not to those actions under the circumstances would be reasonably expected and necessary, either to implement the project, either make it feasible implementable within a reasonable time. The only noun was in the period of 17 years, was'actions and plans for the elaboration of projects " [1] that are not, of course, no plans or projects to implement the intended purpose. Instead, the administration for some time was not sure how to made use of the disputed land.Hence the Council of Ministers on 19.6.2007 only gave its approval for construction of offices of the Department of Planning and Housing instead of the District Lands Office and District Offices of Agriculture, originally scheduled and published. Even he admitted Mr. Mappouridis in his speech that there were specific projects for implementation purpose, but only plans to interface with future pieces of programming and extensions of buildings already constructed, something that certainly can not meet the strictest criteria raised the case Efthimiadis above.
It is evident from the above that, objectively considering the circumstances, the administration has not taken the necessary steps to implement the project within a reasonable time. The refusal of the administration to return the land to the applicant, it is illegal and should be canceled.
The appeal succeeds with costs € 1300 plus VAT, for the applicant. The decision is canceled and everything have been received, as appropriate executed in accordance with Article 23.5 of the Constitution.
(Min.) C. Erotokritou, D.
/ AI
