AFFAIRE LOIZIDOU c. TURQUIE
CASE OF LOIZIDOU
28 juillet/July 1998
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by a Grand Chamber
Turkey – claims for just
satisfaction in respect of Court’s findings, in principal judgment, of
violation of Article 1 of Protocol No.1 to the Convention
Court’s finding in principal judgment that denial of access to property
in northern Cyprus was
imputable to Turkey is res judicata – applicant entitled to compensation.
respondent State’s claim
rejected (fifteen votes to two).
Given uncertainties inherent in assessing economic loss caused by denial
of access, sum awarded
on equitable basis.
respondent State to pay
applicant specified sum (fourteen votes to three).
Award made in respect of anguish, helplessness and frustration suffered
respondent State to pay applicant specified
sum (fifteen votes to two).
Awarded in full.
State to pay applicant specified sum (thirteen votes to four).
1. This summary by the registry does not bind the Court
In principle not appropriate that States which act in interests of Convention
reimbursed costs and expenses.
Cypriot Government’s claims
18.12.96, Loizidou v. Turkey
In the case of Loizidou
The European Court of Human
Rights, sitting, in accordance with Rule 51 of Rules of Court A2,
as a Grand Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr F. Golcuklu,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr P. Jambrek,
Mr U. Lohmus,
and also of Mr H. Petzold,
Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private
on 29 November 1997 and 25 June 1998,
Delivers the following judgment
on Article 50, which was adopted on the last-mentioned date:
1. The case was
referred to the Court by the Government of the Republic of Cyprus (“the
Cypriot Government”) on 9 November 1993, within the three-month period
laid down by Article 32 § 1 and Article 47 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
Notes by the Registrar
1. The case is numbered 40/1993/435/514. The first
number is the case's position on the
list of cases referred to the Court in the relevant year (second number).
The last two
numbers indicate the cases's position on the list of cases referred to
the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules of Court A apply to all cases referred to the Court before the
entry into force of
Protocol No. 9 (1 October 1994) and thereafter only to cases concerning
States not bound
by that Protocol. They correspond to the Rules that came into force on
1 January 1983, as
amended several times subsequently.
(“the Convention”). It originated
in an application (no. 15318/89) against the Republic of Turkey (“the Turkish
Government”) lodged with the European Commission of Human Rights (“the
Commission”) under Article 25 by a Cypriot national, Ms Titina Loizidou,
on 22 July 1989.
2. In its judgment
of 23 March 1995 the Court dismissed various preliminary objections raised
by the Turkish Government but joined to the merits a preliminary objection
ratione temporis (Series A no. 310).
In its judgment on the merits
of 18 December 1996 (“the principal judgment”) the Court dismissed the
objection ratione temporis, found that the continuous denial of
the applicant’s access to her property in northern Cyprus and the ensuing
loss of all control over the property was a matter which fell within Turkey’s
“jurisdiction” within the meaning of Article 1 of the Convention and was
thus imputable to Turkey. It also found that there had been a breach of
Article 1 of Protocol No. 1 in that the applicant had effectively lost
all control over, as well as all possibilities to use and enjoy, her property.
However it found that there had been no interference with the applicant’s
right to respect for her home under Article 8 of the Convention (Reports
of Judgments and Decisions 1996-VI, pp. 2227-2238, §§ 31-66,
and points 1-4 of the operative provisions).
3. As the question
of the application of Article 50 was not ready for decision, it was reserved
in the principal judgment. The Court invited the Turkish Government and
the applicant to submit, within six months, their written observations
on the matter and, in particular, to notify the Court of any agreement
they may have reached (ibid., pp. 2238-2239, §§ 67-69, and point
5 of the operative provisions).
4. No agreement
having been reached, the applicant and the Turkish Government submitted
their memorials on 23 and 24 June 1997. A Valuation Report, setting out
the basis for the calculation of the applicant’s loss, was appended to
the applicant’s memorial. The comments of the Delegate of the Commission
in reply were received on 28 July 1997.
5. In their memorial
the Turkish Government contested the Court’s decision that the interference
with the applicant’s property rights was imputable to Turkey and submitted
that, given the political and legal complications of proceeding with the
case, the Court should adjourn further consideration of it until a political
solution to the Cyprus issue was found.
6. On 30 August
1997 the Court rejected the Turkish Government’s request for an adjournment
sine die of the Article 50 proceedings and invited the applicant,
the Turkish and Cypriot Governments and the Delegate of the Commission
to submit before 31 October 1997 any further observations on Article 50
that they might wish to make. It was also decided to hold a hearing on
7. The observations
of the Cypriot Government were received on 3 November 1997 and those
of the applicant and the Turkish Government on 4 November 1997. The Delegate
indicated that he would address the issues in the course of the hearing.
8. In accordance
with the President’s decision, the hearing took place in public in the
Human Rights Building, Strasbourg, on 27 November 1997. The Court had held
a preparatory meeting beforehand.
There appeared before the
(a) for the Government
Mr R. Turmen, Ambassador, Permanent Representative
of Turkey to the Council of Europe, Agent,
Mr M. Ozmen, Legal Counsellor, Ministry of
Mrs D. Akcay, Deputy to the Permanent Representative
of Turkey to the Council of Europe, Co-Agents,
Mr H. Golsong, Adviser,
Mr Z. Necatigil, Legal Counsellor,
Mr N. Akinci, Deputy Director General,
Ministry of Foreign Affairs,
Mr H. Guven, Deputy Director General,
Ministry of Foreign Affairs, Counsel;
(b) for the Government
Mr A. Markides, Attorney-General, Agent,
Mr M. Shaw, Barrister-at-Law,
Mr P. Polyviou, Barrister-at-Law,
Ms T. Polychronidou, Counsel of the Republic A’,
Ms S.M. Joannides, Counsel of the Republic A’, Counsel,
Mrs C. Palley, Consultant to the Attorney-General, Adviser;
(c) for the Commission
Mr S. Trechsel, Delegate;
(d) for the applicant
Mr A. Demetriades, Barrister-at-Law,
Mr I. Brownlie, C.B.E., QC,
Ms J. Loizidou, Barrister-at-Law, Counsel.
The Court heard addresses
by Mr Trechsel, Mr Demetriades, Mr Brownlie, Mr Markides, Mr Shaw,
Mr Turmen, Mr Necatigil and Mr Golsong.
9. On 12 December
1997 the applicant submitted her revised claims as regards costs and expenses
in connection with the Article 50 proceedings in the light of the hearing
that had taken place.
Mr Bernhardt, then Vice-President of the Court, replaced Mr Ryssdal as
Acting President of the Grand Chamber following Mr Ryssdal’s death
on 18 February 1998 (Rules 21 § 6 and 51 § 6 of Rules of Court
11. On 25 February
1998 the Acting President, in the presence of the Registrar, drew by lot
the name of Sir John Freeland, pursuant to Rule 54 § 2,
in order to complete the Grand Chamber.
Following the death of Mr
Walsh, Mr J. Makarczyk was chosen in the same manner on 31 March 1998.
AS TO THE FACTS
THE CIRCUMSTANCES OF THE CASE
12. The applicant,
a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she
married and moved with her husband to Nicosia.
13. She is the
owner of plots of land nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004,
5386 and 5390 in Kyrenia. Prior to the Turkish occupation of northern Cyprus
on 20 July 1974, work had commenced on plot no. 5390 for the construction
of a block of flats, one of which was intended as a home for her family.
The applicant had entered into an agreement with the property developer
to exchange her share in the land for an apartment of 100 sq. m. Her ownership
of the properties is attested by certificates of registration issued by
the Cypriot Lands and Surveys Department at the moment of acquisition.
14. Since 1974
the applicant has been prevented from gaining access to her properties
in northern Cyprus and “peacefully enjoying” them as a result of the presence
of Turkish forces there.
15. On 19 March
1989 the applicant participated in a march organised by a women’s group
(“Women Walk Home” movement) in the village of Lymbia near the Turkish
village of Ak?nc?lar in the occupied area of northern Cyprus. The aim of
the march was to assert the right of Greek Cypriot refugees to return to
Leading a group of fifty
marchers she advanced up a hill towards the Church of the Holy Cross in
the Turkish-occupied part of Cyprus passing the United Nations' guard post
on the way. When they reached the churchyard they were surrounded by Turkish
soldiers and prevented from moving any further. She was detained by the
Turkish Cypriot police for a period of ten hours and subsequently released.
FINAL SUBMISSIONS TO THE
16. The applicant
submitted that she is entitled to just satisfaction by virtue of the continuing
violation of her property rights for which Turkey is responsible.
17. The Cypriot
Government endorsed the applicant’s claims and submitted that the Government
should also be reimbursed their costs and expenses in respect of the present
18. The Turkish
Government requested that the Court reject the claims made by the applicant
for pecuniary compensation as not being “necessary” under the terms of
Article 50. In addition, these claims should not be entertained in view
of the requirement in Article 50 that the “decision” or “measure” must
be that of a “High Contracting Party”.
AS TO THE LAW
19. Article 50
provides as follows:
“If the Court finds that
a decision or a measure taken by a legal authority or any other authority
of a High Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the internal law
of the said Party allows only partial reparation to be made for the consequences
of this decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party.”
20. The applicant
and the Cypriot Government submitted that an award of compensation should
be made in the present case in the light of the Court’s finding of a violation
of her property rights. In the course of the hearing before the Court the
applicant withdrew a claim which had been made in her memorial for the
restoration of her rights.
The Turkish Government, on
the other hand, submitted that there was no entitlement to just satisfaction.
I. ENTITLEMENT TO JUST
21. In the submission
of the Turkish Government they cannot be held liable in international law
for the acts of the “Turkish Republic of Northern Cyprus”. There is no
legal basis for holding Turkey liable as it is well settled in international
law that the first condition that has to be satisfied for a State to incur
liability is that the unlawful act or conduct is attributable to the State
on whose behalf the perpetrator of the unlawful act or conduct was acting.
Regard should be had to the
fact that the Commission has accepted, even in cases where the allegedly
unlawful act resulted directly from the actions of a national authority,
that a national authority cannot incur liability where jurisdiction in
the relevant sphere has been transferred to an international organisation
(see M. and Co. v. Germany, Decisions and Reports, vol. 64, p. 139).
Any power that Turkey has
in Cyprus is derived from the Zurich and London Agreements of 1959 and
the treaties signed in 1960, which remain in force. Subsequent agreements
or texts (such as the Geneva Declaration of 30 August 1974, the “ten-point”
agreement of 1979 or the Set of Ideas of 1992) have not conferred any new
responsibilities on Turkey. The activity complained of, in other words
the alleged unlawful act, must result directly from an act attributable
to the State, whether it be an administrative act, an act of the military
authorities, of the legislature or of the judiciary. There is no case where
a third-party State has been held liable for the acts of another State
– whether or not such State is recognised – which exercises effective authority
through constitutionally established organs.
It would therefore be incompatible
with principles of international law to award compensation against Turkey.
In addition, the Turkish
Government stressed that the question of property rights and reciprocal
compensation is the very crux of the conflict in Cyprus. These issues can
only be settled through negotiations and on the basis of already agreed
principles of bi-zonality and bi-communality. Inevitably the principle
of bi-zonality will involve an exchange of Turkish Cypriot properties in
the south with Greek Cypriot properties in the north, and if need be, the
payment of compensation for any difference. An award under Article 50 would
undermine the negotiations between the two communities and would spoil
the efforts to reach a settlement on the basis of agreed principles and
In conclusion, it was submitted
that compensation was not “necessary” under the terms of Article 50. Moreover
the claim should be disallowed on the basis that this provision requires
that the “decision” or “measure” involved be that of a “High Contracting
Party”. For the reasons given above that was not the situation in the present
22. The applicant
pointed out that the Court’s principal judgment on the merits had established
that there was a continuous breach of Article 1 of Protocol No. 1 which
was imputable to Turkey. In accordance with the principle ubi ius ibi
remedium it was necessary to make an award to ensure that the applicant
was not left without a remedy.
23. The Cypriot
Government emphasised that Article 50 proceedings do not constitute an
appeal from the Court’s judgments on the preliminary objections and the
merits. It was not open to those appearing before the Court to seek to
relitigate issues upon which the Court had already decided. Article 50
was applicable in the present case since no reparation had been made by
the Turkish Government in respect of the violation of the applicant’s property
24. The Delegate
of the Commission also maintained that the applicant should receive just
satisfaction. The fact that political efforts were being made to resolve
the “Cyprus problem” was not a valid reason for refusing to make an award.
25. The Court
recalls its finding in paragraph 57 of its principal judgment on the merits
in the present case “that the continuous denial of the applicant’s access
to her property in northern Cyprus and the ensuing loss of all control
over the property is a matter which falls within Turkey’s ‘jurisdiction’
within the meaning of Article 1 and is thus imputable to Turkey” (the principal
judgment, Reports of Judgments and Decisions 1996-VI, p. 2236).
The Court also found that
the applicant must be regarded to have remained the legal owner of the
land for purposes of Article 1 of Protocol No. 1 and that “as a consequence
of the fact that [she] has been refused access to the land since 1974,
she has effectively lost all control as well as all possibilities to use
and enjoy her property” (ibid., p. 2237, § 63). It concluded that
the continuous denial of access to her property was an unjustified interference
with her property rights in breach of Article 1 of Protocol No. 1 (ibid.,
pp. 2237-2238, § 64).
26. In view of
the above the Court is of the opinion that the question of Turkey’s responsibility
under the Convention in respect of the matters complained of is res
judicata. It considers that it should make an award under Article 50.
It is not persuaded by the argument that in doing so it would undermine
political discussions concerning the Cyprus problem any more than it was
by the same argument at the merits stage as regards finding a violation
of Article 1 of Protocol No. 1 (ibid., p. 2236-2237, §§
59 and 64).
That being the case the Court
finds that the applicant is entitled under Article 50 to a measure of just
satisfaction by way of compensation for the violation of her property rights.
II. PECUNIARY DAMAGE
27. The applicant
stressed that she did not claim compensation for any purported expropriation
of her property. In the light of the Court’s finding that she is still
the legal owner of the property no issue of expropriation arises.
Her claim is thus confined
to the loss of use of the land and the consequent lost opportunity to develop
or lease it. With reference to a Valuation Report assessing the value of
her property and the return that could be expected from it, she claimed
621,900 Cypriot pounds (CYP) by way of pecuniary damage concerning the
period between 22 January 1990, the date of the acceptance by Turkey of
the compulsory jurisdiction of the Court, and the end of 1997 (see paragraph
The method employed by the
Valuation Report involved calculating the market price of the property
as at 1974 and increasing it by 12% per year to calculate the value that
the property would have had if the northern part of Cyprus had not been
occupied by the Turkish army. It was emphasised that the property was situated
in an area of Kyrenia which in 1974 had been undergoing intensive residential
and tourist development. The occupation of the properties had deprived
the owner of her right to lease and thus resulted in a substantial loss
The sum claimed by way of
pecuniary damage represented the aggregate of ground rents that could have
been collected during the period 1990-1997 calculated as 6% of the estimated
market value of the property for each of the years in question.
28. The Cypriot
Government supported the applicant’s claim. In particular they contended
that Turkey’s continued unlawful occupation of part of the Republic of
Cyprus should not be used as a reason to reduce the amount awarded by way
of pecuniary damage. To do so would be to permit a wrongdoer to benefit
from his wrongdoing since the violation of the Convention found in the
present case arose as a consequence of the unlawful invasion and occupation
of part of the island by Turkey.
29. The Turkish
Government maintained that the claim for damage should not be entertained
by the Court for the reasons set out above (see paragraph 21 above). They
did not offer any comments on the amount claimed by the applicant under
30. The Delegate
of the Commission submitted that the valuer’s opinion on the development
potential of the land which had been prepared on the applicant’s behalf
did not provide a realistic basis for the assessment of the pecuniary damage
(see paragraph 4 above). The historical events in Cyprus affected not only
the applicant individually but numerous other people in a similar situation.
They could not therefore be completely disregarded. The applicant was entitled
to be fully compensated for loss of access to and control of her property
but not for the diminished value of that property due to the general political
situation. In his view CYP 100,000 would be a more appropriate award.
31. The Court
recalls that the applicant is still the legal owner of nine plots of land
and one apartment (see paragraph 13 above) and that its finding of a violation
of Article 1 of Protocol No. 1 was based on the fact that, as a consequence
of being denied access to her land since 1974, she had effectively lost
all control as well as all possibilities to use and enjoy her property
(see the principal judgment cited above, pp. 2237-2238, §§ 60-64).
She is therefore entitled to a measure of compensation in respect of losses
directly related to this violation of her rights as from the date of Turkey’s
acceptance of the compulsory jurisdiction of the Court, namely 22 January
1990, until the present time.
32. Although the
Turkish Government have limited their submissions to contesting the applicant’s
right to compensation and have thus not sought to challenge the applicant’s
approach to the calculation of her economic loss, the Court does not for
this reason alone accept without question the estimates provided by the
33. In this regard
the Court considers as reasonable the general approach to assessing the
loss suffered by the applicant with reference to the annual ground rent,
calculated as a percentage of the market value of the property, that could
have been earned on the properties during the relevant period.
However, the applicant’s
valuation inevitably involves a significant degree of speculation due to
the absence of real data with which to make a comparison and makes insufficient
allowance for the volatility of the property market and its susceptibility
to influences both domestic and international. Her method of assessment
presupposes that property prices in the Kyrenia area would have risen consistently
by 12% each year from 1974 until 1997 and that the applicant would have
actually sought to or have been able to rent her plots of land at 6% of
this enhanced value. Even making allowances for the undoubted development
potential of the area in which the land is situated, the presumption that
the property market would have continued to flourish with sustained growth
over a period of 23 years is open to question. The Court accordingly cannot
accept these percentage increases as a realistic basis for calculating
the applicant’s loss.
34. Taking into
account the above-mentioned uncertainties, inherent in any attempt to quantify
the real losses incurred by the applicant, and making an assessment on
an equitable basis the Court decides to award CYP 300,000 under this
35. The applicant
also claimed CYP 621,900 in respect of non-pecuniary damage. She contended
that various aggravating factors directly concerning her should be taken
into account in the Court’s assessment. These encompassed distress and
feelings of frustration in face of the prolonged deprivation of her rights
as well as feelings of helplessness connected to the presence of the Turkish
army in northern Cyprus and her unsuccessful efforts to have the property
returned to her. It also had to be borne in mind that the applicant had
grown up in Kyrenia where her family
had lived for generations and was now a displaced person in her own country.
The fact that the Turkish Government had not sought to provide any justification
for the interference with her property rights was a further aggravating
factor to be taken into account.
In the applicant’s submission
there were also factors related to considerations of the public interest
and the public order of Europe. In addition to the obligation to compensate
there was in the present situation a need for a large award of non-pecuniary
damages to act as an inducement to observe the legal standards set out
in the Convention. The slowness and depressing effects of the procedural
pathways open to the applicant, the dilatory attitude of the respondent
Government and the various unfounded objections raised by them throughout
the procedure also had to be taken into account.
A further aggravating factor
related to the consistent policy of Turkey and her agents in the occupied
area to exercise control over, and to exclude, the Greek Cypriot owners
of property on a discriminatory basis. Such policies amounted to racial
discrimination, were a source of distress to the applicant and constituted
an affront to international standards of human rights.
36. The Cypriot
Government supported the applicant’s claims under this head. They considered
that the sense of helplessness and frustration was deeply felt by the applicant
in relation to denial of access and that there was a strong family relationship
with regard to the property in question which forms part of the family
heritage. The ethnic discrimination practised against Greek Cypriots was
also a relevant consideration and must have had an impact upon the feelings
of the applicant.
37. The Turkish
Government offered no observations under this head.
38. The Delegate
of the Commission considered that an award should be made but was unable
to accept some of the “aggravating circumstances” invoked by the applicant,
in particular her arguments that she had been deprived of her home – the
Article 8 complaint having been dismissed by the Court – and that she had
been discriminated against as a Greek Cypriot – no complaint under Article
14 having been raised in the original application. He further considered
that no punitive element should be imported into the application of Article
50 since the “public policy” considerations adduced by the applicant concerned
the global situation of displaced Greek Cypriots and thus went far beyond
the perimeters of the individual case. He considered that CYP 20,000 would
be an appropriate award.
39. The Court
is of the opinion that an award should be made under this head in respect
of the anguish and feelings of helplessness and frustration which the applicant
must have experienced over the years in not being able to use her property
as she saw fit.
40. However, like
the Delegate of the Commission, the Court would stress that the present
case concerns an individual complaint related to the applicant’s personal
circumstances and not the general situation of the property rights of Greek
Cypriots in northern Cyprus. In this connection it recalls that in its
principal judgment it held that “it need not pronounce itself on the arguments
which have been adduced by those appearing before it concerning the alleged
lawfulness or unlawfulness under international law of Turkey’s military
intervention in the island in 1974” (cited above, p. 2236, §
56). It also rejected the applicant’s allegations that there had been a
violation of the right to respect for her home (ibid., p. 2238, §§
65-66) and made no finding concerning the question of racial discrimination
which had not formed part of the applicant’s complaint under the Convention.
Making an equitable assessment,
the Court awards CYP 20,000 under this head.
IV. THE APPLICANT'S
COSTS AND EXPENCES
41. The applicant,
who had submitted detailed bills of costs in connection with the different
stages of the proceedings before the Commission and Court, claimed CYP
137,084.83 by way of costs and expenses, inclusive of value-added tax.
The Cypriot Government supported her claim which was composed of the following
(a) CYP 34,571.25 concerning
the proceedings before the Commission;
(b) CYP 30,190 concerning
the preliminary objections phase before the Court;
(c) CYP 49,112.38 concerning
the merits phase before the Court;
(d) CYP 23,211.20 concerning
the Article 50 proceedings.
She submitted that in this
kind of exceptional case involving many hearings before both the Commission
and Court it was justified to have recourse to the services of two Cypriot
lawyers as well as Queen’s Counsel.
42. The Turkish
Government did not comment on the applicant’s submissions under this head.
43. The Delegate
considered that the costs were excessive since it was not necessary for
the applicant to have been represented at most stages of the proceedings
by two lawyers and additional advisers. In addition, the applicant had
obtained substantial support from the Cypriot Government.
44. The Court
considers that, within the context of the applicant’s property complaints,
the present case raised complex issues of fundamental importance concerning
the Convention system as a whole. It also involved several hearings before
the Commission and three hearings before the Court. The applicant was thus
entitled to avail of the services of two Cypriot lawyers and a specialist
Queen’s Counsel from the United Kingdom in order to represent her interests.
It concludes that the costs
and expenses were actually and necessarily incurred and reasonable as to
quantum and should be awarded in full.
V. THE CYPRIOT GOVERNMENT'S
COST AND EXPENCES
45. The Cypriot
Government submitted that they should also be reimbursed the costs and
expenses in bringing the case before the Court. They claimed CYP 48,315.77
in this respect. They explained that they were seeking to recover expenses
only – and not compensation – since significant resources had been allocated
to the case, an approach which had been amply justified by the two judgments
of the Court.
46. The Turkish
Government made no remarks concerning this claim.
47. The Delegate
of the Commission, however, opposed it.
48. The Court
recalls the general principle that States must bear their own costs in
contentious proceedings before international tribunals (see, for example,
Article 64 of the Statute of the International Court of Justice and the
Advisory Opinion of the Court in “Application for Review of Judgement No.
158 of the United Nations Administrative Tribunal”, I.C.J. Reports 1993,
p. 211, § 96). It considers that this rule has even greater application
when, in keeping with the special character of the Convention as an instrument
of European public order (ordre public), High Contracting Parties
bring cases before the Convention institutions, whether by virtue of Article
24 or Article 48 (c), as part of the collective enforcement of the rights
set out in the Convention or by virtue of Article 48 (b) in order to protect
the rights of their nationals. In principle, it is not appropriate, in
the Court’s view, that States which act, inter alia, in pursuit
of the interests of the Convention community as a whole, even where this
coincides with their own interests, be reimbursed their costs and expenses
for doing so.
Accordingly the Court rejects
the Cypriot Government’s claim for costs and expenses.
VI. DEFAULT INTEREST
to the information available to the Court, the statutory rate of interest
applicable in Cyprus at the date of adoption of the present judgment is
8% per annum.
FOR THESE REASONS, THE
1. Dismisses by fifteen
votes to two the respondent State’s claim that the applicant has no entitlement
to an award of just satisfaction under Article 50 of the Convention;
2. Holds by fourteen
votes to three that the respondent State is to pay to the applicant, within
three months, 300,000 (three hundred thousand) Cypriot pounds for pecuniary
3. Holds by fifteen
votes to two that the respondent State is to pay to the applicant, within
three months, 20,000 (twenty thousand) Cypriot pounds for non-pecuniary
4. Holds by thirteen
votes to four that the respondent State is to pay to the applicant, within
three months, 137,084 (one hundred and thirty-seven thousand and eighty-four)
Cypriot pounds and 83 (eighty-three) cents for costs and expenses;
5. Holds by fifteen
votes to two that simple interest at an annual rate of 8% shall be payable
on the above amounts from the expiry of the above-mentioned three months
6. Dismisses unanimously
the Cypriot Government’s claims for costs and expenses;
7. Dismisses unanimously
the remainder of the claim for just satisfaction.
Done in English and in French,
and notified in writing on 28 July 1998 pursuant to Rule 55 § 2, second
sub-paragraph, of Rules of Court A.
In accordance with Article
51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A,
the following dissenting opinion are annexed to this judgment:
(a) partly dissenting opinion
of Mr Morenilla;
(b) partly dissenting opinion
of Mr Mifsud Bonnici;
(c) dissenting opinion of
(d) dissenting opinion of
: R. B.
Initialled : H. P.
PARTLY DISSENTING OPINION
OF JUDGE MORENILLA
I agree with the majority
that the applicant should receive just satisfaction for the continuing
denial of access to her property in northern Cyprus and the ensuing loss
of all control over it which was imputable to Turkey, as stated by the
Court in the principal judgment of 18 December 1996. (Reports of Judgments
and Decisions 1996-VI, p. 2236, § 57). I disagree, however, with
points 2 and 4 of the operative provisions for the following reasons:
As regards point 2, the majority
has unrealistically disregarded the general political situation of the
region where the applicant has property when examining her claim for pecuniary
damage for the loss of use of the land and the consequent loss of opportunity
to develop or lease it during the past eight years, and when making an
equitable assessment of this (paragraphs 33 and 34 of this judgment). As
with the Delegate of the Commission (paragraph 30), I consider that CYP
100,000 would be the appropriate compensation.
As regards point 4, I find
excessive the sum of CYP 137,084.83 for costs and expenses awarded to the
applicant to be paid by the respondent State. Under Article 50 of the Convention,
as interpreted by case-law of the Court (see, Pine Valley Developments
Ltd v. Ireland judgment of 9 February 1993 (Article 50), Series A no. 246-B,
p. 89, § 19), the injured party is entitled to recover costs which
were necessarily incurred. But in the present case, I do not consider it
necessary for the applicant to have been represented before the Commission
and the Court by two Cypriot lawyers and a foreign international law specialist,
since, in my view, one lawyer would have sufficed to deal properly with
the legal issues involved in this case. I therefore consider that the respondent
State should only be held liable to pay one third of this amount.
PARTLY DISSENTING OPINION
OF JUDGE MIFSUD BONNICI
1. I could not
vote in favour of granting to the applicant the sum of CYP 137,084.83
for the costs and expenses claimed by her. The sum is equivalent to GBP
185,064.52 at the rate of exchange quoted by the applicant of 1 CYP = GBP
2. Like the Delegate
of the Commission in his oral pleadings before the Court and a minority
of my brother judges, I find the claim to be excessive and exaggerated.
3. It is of course
clear that the case was complicated and difficult, but, nevertheless these
qualifications do not justify the hefty bill of costs and expenses which
was submitted and which, surprisingly, the majority of the Court accepted.
That Government contributed to this result by omitting to make any submissions
in the matter. The Turkish Government, likewise did not make any submissions
as to the applicant’s approach to the calculation of her economic loss
(see paragraph 32 of the judgment) but even so, as the Court rightly observes,
it cannot, for this reason alone accept without question the applicant’s
submissions. In my view the same holds good, for the question of costs
4. To illustrate
my criticism of the applicant’s claim under this head, I will limit myself
to the following details:
to the bill of costs dated 26 June 1995 the fees for the two Cypriot lawyers
engaged in the research, preparation of submissions, as well as submissions
in reply and the conduct of the oral hearing on the merits amounted
to GBP 18,900 (CYP 14,000) while those relating to the services of specialist
counsel and advocate for research work, a visit to Cyprus for consultations,
preparation of submissions in reply and conduct of oral hearing on the
merits amounted to GBP 35,888 (CYP 29,416) i.e. a total of GBP 54,788.
(b) For that part
of the case which dealt with the preliminary objections, on the same description
– the Cypriot lawyers charged GBP 12,150 (CYP 9,000) while the specialist
counsel and advocate billed GBP 24,000 (CYP 17,760) – a total of GBP 36,150.
(c) Lastly, for
the third and last stage – that concerning Article 50 – for the preparation
of the applicant’s memorial and the oral hearing, the bills amounted to
GBP 9,045 (CYP 6,700) and GBP 18,795 (CYP 15,406) a total of GBP 27,840
The memorial in question
consisted of 22 double spaced pages, a third of which is devoted to quotations
mostly from judgments of the Court.
A grand total of GBP 118,778
in lawyers’ fees is in my opinion excessive and unjustified.
(d) Finally, to
illustrate further why I did not vote in favour of awarding the costs and
expenses, in full and “en bloc” I noticed that, in connection with her
claims under Article 50, the applicant commissioned a Valuation Report
of her property in Cyprus, by a firm of Cypriot valuers. The total cost
amounted to CYP 1,734. Their approach set out in this report was not accepted
by the Court as it involved a significant degree of speculation and did
not make any allowance for the volatility of the property market and its
susceptibility to domestic and international influences (paragraph 33).
In spite of this, the cost was allowed.
OF JUDGE GoLCuKLu
I regret that I am unable
to agree with the opinion of the majority of the Court concerning “just
My opinion on the application
of Article 50 not only extends and reiterates my dissent regarding the
judgments on “preliminary objections” of 23 March 1995 (40/1993/435/514)
and on the “merits” of 18 December 1996 (40/1993/435/514), but is also
based on substantive issues inherent in the concept of just satisfaction
as provided for in Article 50 of the Convention.
1. According to
the words of that provision, the Court’s case-law and the unanimous opinion
of legal writers, Article 50 does not necessarily create an absolute obligation
for the Court to award compensation.
The discretionary nature
of the Court’s powers regarding just satisfaction is derived both from
its power to determine if necessary to award compensation and from
the fact that such a decision by the Court does not concern a matter of
ordre public. There is therefore no requirement under the Convention,
nor any subsequent practice of the Court obliging it to award any particular
sum to the applicant.
The Court itself, even in
strictly individual cases having no bearing on international politics,
has very often – and in connection with certain Articles of the Convention
systematically – chosen not to award just satisfaction, taking the view
that the finding of a violation already constituted sufficient satisfaction.
As President Bernhardt also
pointed out in his dissenting opinion attached to the principal judgment,
the Loizidou case concerns the possessions of a large number of people,
a question which forms an inseparable part of the solution to the Cypriot
problem. The proposals of the directly interested parties appear in the
“Set of ideas on an overall framework agreement on Cyprus” (S/24472).
Ignoring the complexity and
political difficulties of an international problem that has already lasted
thirty-five years and confining it to an individual dimension will surely
not help to bring about a rapid solution.
2. I am of the
opinion that in this case “just satisfaction” should not be awarded,
nor should costs be reimbursed.
3. This Loizidou
case is not an isolated case concerning the applicant alone (the intervention
of the Greek Cypriot administration is manifest proof of that); it concerns
on the contrary all the inhabitants of the island, whether of Turkish or
Greek origin, who were displaced following the events of 1974, a fact which
should cause no surprise.
At the heart of the Loizidou
v. Turkey case lies the future political status of a State that has unfortunately
disappeared, a question to which all the international political bodies
(the United Nations, the European Union, the Council of Europe, etc.) are
now seeking an answer. A question of such importance can never be reduced
purely and simply to the concept of the right of property and thus settled
by application of a Convention provision which was never intended to solve
problems on this scale.
I agree entirely with Judge
Morenilla’s statement in his dissenting opinion that “the majority has
unrealistically disregarded the general political situation of the region
where the applicant has property when examining her claim for pecuniary
damage for the loss of use of the land and the consequent loss of opportunity
to develop or lease it during the past eight years, and when making an
equitable assessment of this (paragraphs 33 and 34 of this judgment).”
4. Lastly, as
I observed above, by intervening in this case, that is by bringing it before
the Court, the Greek Cypriot administration has completely altered the
nature of the case for Convention purposes. It has become an interstate
case. In spite of its deceptive appearance, the judicial and legal stage
in this case is occupied by the representatives of the Greek Cypriot administration.
As the Court has itself accepted in inter-state cases, the parties must
themselves bear the costs and expenses they occur in such proceedings.
The applicant should not therefore be awarded costs. In the alternative,
I would say, in agreement with Judge Morenilla in his dissenting opinion,
that in the present case it was not necessary “for the applicant to have
been represented before the Commission and the Court by two Cypriot lawyers
and a foreign international law specialist, since … one lawyer would have
sufficed to deal properly with the legal issues involved in this case”.
OF JUDGE pettIti
I voted with the minority
against the decisions set out in point 1 of the operative provisions (the
principle) and in points 2 to 5 awarding various sums to Mrs Loizidou.
This was necessary so that
I could remain consistent with my votes and dissenting opinions in the
first two Loizidou judgments, particularly as the present judgment again
refers, as regards international law, to the first judgment. My votes in
the first two judgments were prompted by the political situation in Cyprus
and my interpretation of international law. The fact that an international
force controls the “green line” and prohibits the free movement of persons
from one zone to the other and access to property in another zone should
in my opinion have been taken into account by the Court. Current political
developments show that the problem of Cyprus unfortunately goes well beyond
the dimensions of a mere lawsuit.