AFFAIRE LOIZIDOU c. TURQUIE
CASE OF LOIZIDOU v. TURKEY
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Judgment delivered by a Grand Chamber
Turkey - claims for just satisfaction in respect of Court’s finding, in principal judgment, of violation of Article 1 of Protocol No.1 to the Convention
I. Entitlement to just satisfaction
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.
Conclusion: respondent State’s claim dimissed (fifteen votes to two).
II. Pecuniary damage
Given uncertainties inherent in assessing economic loss caused by denial of access, sum awarded on equitable basis.
Conclusion: respondent State to pay applicant specified sum (fourteen votes to three).
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 two).
IV. Applicant’s costs and expenses
Awarded in full.
Conclusion: respondent State to pay applicant specified sum (thirteen votes to four).
V. Cypriot Government’s costs and expenses
In principle not appropriate that States which act in interests of Convention community be reimbursed costs and expenses.
Conclusion: Cypriot Government’s claims dismissed (unanimously).
COURT’S CASE-LAW REFERRED TO
23.3.1995, Loizidou v. Turkey (preliminary Objections); 18.12.1996, Loizidou v. Turkey (merits)
In the case of Loizidou v. Turkey,
The European Court of Human Rights, sitting, in accordance with Rule 51 of Rules of Court A, as a Grand Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr F. Gölcüklü,
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. Lōhmus,
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:
(“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.
In its judgment on the merits of 18 December 1996 (“the principal judgment”) the Court dismissed the objection ratione temporis and 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. 2227-38, §§ 31-66, and points 1-4 of the operative provisions).
There appeared before the Court:
(a) for the Government of Turkey
Mr R. Türmen, Ambassador, Permanent Representative
of Turkey to the Council of Europe, Agent,
Mr M. Özmen, Legal Counsellor, Ministry of
Mrs D. Akçay, 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. Güven, 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, CBE, QC,
Ms J. Loizidou, Barrister-at-Law, Counsel.
The Court heard addresses by Mr Trechsel, Mr Demetriades, Mr Brownlie, Mr Markides, Mr Shaw, Mr Türmen, Mr Necatigil and Mr Golsong.
Following the death of Mr B. Walsh, Mr J. Makarczyk was chosen in the same manner on 31 March 1998.
AS TO THE FACTS
the CIRCUMSTANCES OF THE CASE
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 COURT
AS TO THE LAW
“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.”
The Turkish Government, on the other hand, submitted that there was no entitlement to just satisfaction.
I. Entitlement to just satisfaction
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 64, p. 138).
Any power that Turkey has in Cyprus is derived from the Zürich 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.
The Court also found that the applicant must be regarded to have remained the legal owner of the land for the 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 over, 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. 2237-38, § 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
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 4 above).
The method employed in 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 1990-97 calculated as 6% of the estimated market value of the property for each of the years in question.
had effectively lost all control as well as all possibilities to use and enjoy her property (see the principal judgment cited above, pp. 2237-38, §§ 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.
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 twenty-three years is open to question. The Court accordingly cannot accept these percentage increases as a realistic basis for calculating the applicant’s loss.
III. Non-pecuniary damage
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.
Making an equitable assessment, the Court awards CYP 20,000 under this head.
IV. The applicant’s costs and expenses
(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.
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 costs and expenses
Accordingly the Court dismisses the Cypriot Government’s claim for costs and expenses.
Vi. Default interest
FOR THESE REASONS, THE COURT
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 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 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 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.
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 opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Morenilla;
(b) partly dissenting opinion of Mr Mifsud Bonnici;
(c) dissenting opinion of Mr Gölcüklü;
(d) dissenting opinion of Mr Pettiti.
Initialled: 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 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, the Pine Valley Developments Ltd and Others 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 CYP 1= 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. The Turkish Government contributed to this result by omitting to make any submissions on the matter. That Government, likewise, did not make any submissions as to the applicant’s calculations of her economic loss (see paragraph 32 of the judgment) but nevertheless the Court cannot for this reason alone accept without question the applicant’s submissions. No doubt the same principle applies to the question of costs and expenses.
4. To illustrate my criticism of the applicant’s 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 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 the 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.
DISSENTING OPINION OF JUDGE GöLCüKLü
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 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 inter-State 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 incur 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”.
DISSENTING 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 lawsuit.
. This summary by the registry does not bind the Court.
. 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 case’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.
. 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.