AFFAIRE LOIZIDOU c. TURQUIE
CASE OF LOIZIDOU v. TURKEY
28 juillet/July 1998
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Judgment delivered by a Grand
Turkey claims for just satisfaction in
respect of Courts findings, in principal judgment, of violation of Article 1 of
Protocol No.1 to the Convention
I. Entitlement to just satisfaction
Courts finding in principal judgment that denial of access to property in northern
imputable to Turkey is res judicata applicant entitled to compensation.
Conclusion: respondent States claim rejected (fifteen votes to two).
Given uncertainties inherent in assessing economic loss caused by denial of access, sum
on equitable basis.
Conclusion: respondent State to pay applicant specified sum (fourteen votes to
III. Non-pecuniary damage
Award made in respect of anguish, helplessness and frustration suffered by applicant.
Conclusion: respondent State to pay applicant specified sum (fifteen votes to
IV. Applicants costs and expenses
Awarded in full.
Conclusion: respondent State to
pay applicant specified sum (thirteen votes to four).
1. This summary by the registry does not bind the Court
V. Cypriot Governments
costs and expenses
In principle not appropriate that States which act in interests of Convention community be
reimbursed costs and expenses.
Conclusion: Cypriot Governments claims rejected (unanimously).
COURTS CASE-LAW REFERRED TO
18.12.96, Loizidou v. Turkey (Merits)
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 Registrar1. 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
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
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 applicants access to her
property in northern Cyprus and the ensuing loss of all control over the property was a
matter which fell within Turkeys 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 applicants 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
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 applicants
loss, was appended to the applicants 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 Courts decision that the interference with the
applicants 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 Governments 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 the
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
Presidents 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 Court:
(a) for the Government of Turkey
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 of Cyprus
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
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.
10. Subsequently, Mr Bernhardt, then
Vice-President of the Court, replaced Mr Ryssdal as Acting President of the Grand Chamber
following Mr Ryssdals death on 18 February 1998 (Rules 21 § 6 and 51 § 6 of
Rules of Court A).
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 womens 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 their homes.
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
FINAL SUBMISSIONS TO THE COURT
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 applicants claims and submitted that the Government should also be reimbursed
their costs and expenses in respect of the present proceedings.
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
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 Courts 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 SATISFACTION
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
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,
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 criteria.
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 case.
22. The applicant pointed out that
the Courts 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
Courts 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 applicants
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 applicants access to her property in northern Cyprus and
the ensuing loss of all control over the property is a matter which falls within
Turkeys 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,
26. In view of the above the Court is
of the opinion that the question of Turkeys 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 Courts finding that she is still the legal owner of the property no issue of
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 4 above).
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 of rent.
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 applicants claim. In particular they contended that Turkeys 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 this head.
30. The Delegate of the Commission
submitted that the valuers opinion on the development potential of the land which
had been prepared on the applicants 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 Turkeys 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 applicants right
to compensation and have thus not sought to challenge the applicants approach to the
calculation of her economic loss, the Court does not for this reason alone accept without
question the estimates provided by the applicant.
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
However, the applicants 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 applicants 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 head.
III. NON-PECUNIARY DAMAGE
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 Courts 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
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 applicants
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 applicants 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
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 applicants 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 Turkeys
military intervention in the island in 1974 (cited above, p. 2236, § 56). It
also rejected the applicants 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 applicants
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
(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
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 Queens Counsel.
42. The Turkish Government did not
comment on the applicants 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 applicants 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 Queens Counsel from the United Kingdom in order to represent her
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
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 Courts 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
Governments claim for costs and expenses.
VI. DEFAULT INTEREST
49. According 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 COURT
1. Dismisses by fifteen votes to two the
respondent States 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 damage;
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 damage;
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 until settlement;
6. Dismisses unanimously the Cypriot
Governments 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
Signed: Rudolf Bernhardt
Signed: Herbert Petzold
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
(c) dissenting opinion of Mr Golcuklu;
(d) dissenting opinion of Mr Pettiti.
Initialled : R. B.
Initialled : H. P.
PARTLY DISSENTING OPINION OF
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 1.35.
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 applicants 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 applicants submissions. In my view
the same holds good, for the question of costs and expenses.
4. To illustrate my criticism of the
applicants claim under this head, I will limit myself to the following details:
(a) According 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 applicants
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 respectively.
The memorial in question consisted of 22 double
spaced pages, a third of which is devoted to quotations mostly from judgments of the
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.
OPINION OF JUDGE GoLCuKLu
I regret that I am unable to agree with the
opinion of the majority of the Court concerning just satisfaction.
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 Courts 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 Courts
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
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
2. I am of the opinion that in this
case just satisfaction should not be awarded, nor should costs be
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 Morenillas
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
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
would have sufficed to deal properly with the legal issues involved in this case.
OPINION 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