DISSENTING OPINION OF JUDGE GöLCüKLü

( Translation )

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”.