DISSENTING OPINION OF JUDGE MARUSTE

The applicant in this case has argued that he did not obtain appropriate compensation for the cultural and historical value of his property. The Grand Chamber agrees with him. It holds that there is a clear entitlement to such compensation, that there exist certain objective grounds for assessing a property ' s unique value and that an international court is a forum which can rule on such an issue. The Grand Chamber seems to state that the relevant Turkish legislation was clearly defective and, accordingly, that the outcome of the domestic judicial proceedings was in contradiction with the Convention. I have serious reservations about such a conclusion.

The applicant purchased the house sometime in the 1930s. It is not clear whether its cultural and historical value played any pecuniary role at the material time, and this point was never argued by the applicant. What is clear is that the cultural value argument came into play after the State ' s decision on 1 November 1990 to classify the property as a “cultural asset” and, subsequently, to expropriate it. What is also crystal clear is that the applicant himself did not create the asset ' s extra value – he simply took proper care of it, as every responsible and good citizen would. Thus, the specific status of a cultural asset was accorded to the property by the State in the general (and not commercial) interest.

The parties agreed - and this was also the view of the Grand Chamber – that the expropriation had been lawful. Consequently, it falls under the second paragraph of Article 1 of Protocol No. 1. Before dealing with that issue, however, I should like to put a general question: does an asset ' s unique cultural and historical value create an extra entitlement (right) to pecuniary compensation under international law generally and under the Convention in particular? A brief examination of the relev ant references in paragraphs 31 ‑ 34 of the judgment does not provide clear confirmation of such a view. The relevant Council of Europe documents indicate, inter alia , that States are called on to allow “compulsory purchase of a protected property” (paragraph 31) and that protection of the cultural heritage does not “create enforceable rights” (paragraph 32). Nor does the very superficial comparative law overview (paragraph 34) indicate a clear common approach in the Council of Europe ' s member States; more importantly, the references are to ordinary situations and only a few of the examples given are related to situations and circumstances similar to those in the present case.

The reason there are no clear rules and common standards is the obvious difficulty – if not impossibility – of assessing and calculating the pecuniary

value of unique historical and cultural objects [3] . In respect of ordinary property the value is evident and clear – it is the market value average, which can be calculated on the basis of a statistical analysis of the market. In respect of a unique item that forms part of the cultural heritage, this method cannot be used. Its value is a matter of (subjective) assessment and, if not agreed, is subject to litigation. Here, I have to point out that the applicant had ample opportunity to make use of three independent expert reports and had the opportunity to bring his case before the domestic courts. The result was that the initial sum offered by the State was doubled and the final amount pa id was EUR 243,104 (paragraph 79 of the judgment). But the applicant wanted more.

Even assuming that the sum offered and paid was not adequate, sufficient or fair, we must compare it with something. An appropriate comparison would have been the price per square metre of nearby houses in a similar or comparable condition. No such comparison has been carried out. How can an international judge, who sits thousands of kilometres away from the site in Adana, has not seen the site and knows nothing about the context and market situation in that region determine the amount of proper just satisfaction? In my opinion, this is simply impossible.

This does not mean that I am against a fair balance and adequate compensation. My argument is that, given the unique and very specific nature of the problem, it must be left to the discretion of the national authorities, and our task should be limited to verifying that a fair procedure is followed in such disputes. We should certainly not enter into the assessment of evidence and award “proper” or “fair” sums under those circumstances, unless the unfairness is evident and striking. This seems not to be the case at hand, or at least we have no evidence to that effect.

It is not accidental that in property matters the Convention has left a wide margin of appreciation to the States. As we know from the text of the second paragraph of Article 1 of Protocol No. 1, the provisions on the protection of property “ ... shall not ... in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ... ”. The respondent State in the given case adopted a specific law as it considered best. Even if the law appears highly restrictive at first sight, excluding a building ' s architectural and historical features and its rarity from the assessment of its value, it is still for the State to decide how it handles this problem and compensates interested parties. The Court ' s well-established position is that it is not its task to assess the relevant legislation of Contracting Parties. As was clear from the facts, the experts had de facto considerable freedom in making their assessments and proposals, as did the courts in using them. All of this produced a sensible and meaningful result.

Lastly, I cannot but note that the Court has awarded EUR 1,000 for costs and expenses without any single document having been submitted by the applicant in support of his claim for the costs incurred. I find this very unfortunate and misleading, since it is a self-evident rule in any judicial proceedings that costs must be shown (proven). Our Rules of Court (Rule 60.2) set out the same requirement, stipulating expressis verbis that the applicant “must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed ... ”. In this property case and under the circumstances, no award should have been made under the head of costs and expenses, and the claim should have been left to be settled between the applicant and his lawyers.

[1] . All conversions into euros in this judgment have been calculated on the basis of the exchange rate in force at the relevant time.

[2] . On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000 .

[3] . What is the rarity value of the Eiffel Tower or the Palace of Westminster? The answer is that no such rarity value exists, because there are no other Eiffel Towers or Palaces of Westminster on the market.