By Adiba Firmansyah, LLB graduate from Middlesex University Dubai, soon to start as an LLM student at King’s College London
In its principal judgment in Molla Sali v. Greece, delivered on 19 December 2018, the Court held that there had been a violation of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1. The case concerns a complaint by Ms Molla Sali, a widow to a Greek national from the Muslim minority, about the application of Sharia law to an inheritance dispute regarding her husband’s Greek and Turkish properties (a greater analysis of the merits of this case can be found here). The husband’s initial wish, expressed in a will drawn up in accordance with Greek civil law, to bequeath the whole of his estate to his wife (the applicant). However, the Greek courts considered that the will was devoid of effect and instead applied principles from Muslim inheritance law which, in Greece, applied specifically to Greeks of Muslim faith. The applicant was therefore deprived of 3/4 of her inheritance as a result, and the deceased husband’s sisters were subsequently recognised as joint beneficiaries.
The Court reserved the issue of just satisfaction under Article 41 to be decided at a later stage. In its just satisfaction judgment delivered on 8 June 2020, the Court held that it would be appropriate redress for the violations of the applicant’s rights if measures were taken by Greece so as to ensure that she retained the property left to her in Greece – but not in Turkey. It also held that if these measures are not taken within one year, Greece must pay the applicant pecuniary damages.
This judgment should be seen against the backdrop of the allocation of just satisfaction by the Court which has become increasingly controversial. As Abdelgawad notes, ‘Article 41 is probably one of the provisions which have raised the most important difficulties to judges over the years’. Given that the issue of just satisfaction is usually decided with scant legal reasoning and with only occasional allusions to equity and necessity as the foundational principles for the determination of compensation, the Molla Sali case therefore provided an opportunity for the Court to discuss the application of Article 41 in greater depth in a separate judgment.
The Greek Code of Civil Procedure does not allow for cases to be reopened in domestic courts should there be a finding of a violation of the Convention by the ECtHR. Therefore, the applicant sought just satisfaction under Article 41 of the Convention for pecuniary and non-pecuniary damage that she argued had been a result of the violations, as well as for reimbursement of expenses in appearing before the Court.
In 2017, the applicant’s sisters-in-law sought an order by the domestic courts for the Greek land register to be updated to recognise their co-ownership of the properties in line with Sharia law. In 2018, the Greek courts accepted this and also ruled that the applicant must register her ownership of the property now bequeathed to her – only 1/4 of the total she had originally been left. However, 5 days after the ECtHR’s judgment, the applicant appealed against this last ruling by the Greek courts. She argued that, based on the ECtHR’s judgment, it was no longer possible for her sisters-in-law to register their rights under Sharia law.
However, the Greek courts noted that, in its earlier judgment, it had ruled – with the force of res judicata – that the applicable law was Sharia law. It also stated that the land register currently showed that the applicant still owned 100% of the property left to her and that this, therefore, infringed the rights of her sisters-in-law. In December 2019, the applicant appealed against this judgment and proceedings are currently still pending.
As for the Turkish properties, the applicant sought to have the will applied to these too. However, the sisters-in-law moved to declare the will null and void due to its incompatibility with Turkish law. However, in January 2018, the Bakirkoy Civil Court of First Instance in Turkey held that it was not necessary to consider the applications of the sisters-in-law since the judgment delivered by the Greek courts was final and binding on the Turkish courts. Both parties have appealed to the Istanbul Court of Appeal against this judgment and the appeal is now pending.
The core part of this judgment was in establishing the pecuniary damage sustained by the applicant from being deprived of the benefits of her husband’s will and in particular, of 3/4 of the properties left to her. With respect to the properties in Greece, even though proceedings concerning these were still pending, the ECtHR stated that it is not necessary to wait for the outcome since it can apply Article 41 if the internal law of the respondent State ‘allows only partial reparation to be made’ for the consequences of the violation. This is a prime example of what Mizzi observes as the Court’s general reliance on principles of equity and necessity, or in other words, on the ‘discretionary language in the aforementioned enabling provision, which concedes the Court a wide margin of appreciation’.
The applicant had then argued that the Court should order restitutio in integrum to redress the violation of her rights which would entail the Greek authorities amending the land registry in her favour. However, the land register has yet to be changed to recognise the two sisters’-in-law ownership of the properties and will not be changed until there is an irrevocable judgment in their favour. Accordingly, the Court noted that the effect of the violations it found in its principal judgment are not yet tangible and that, in principle, it is not its task to specify precisely how a State should put an end to a breach of the Convention and make reparations for its consequences. Therefore, the Court held that unless Greece takes these measures within a year, it must pay the applicant compensation for the value of the Greek properties she was deprived of from the operation of Sharia law.
With respect to the property in Turkey, the Court held that it had no jurisdiction to determine the applicant’s claims concerning the property in Turkey. The Court explained that the husband had drawn up his will in general terms and had therefore not distinguished between the properties in Greece and Turkey. Moreover, the applicant had registered the properties with the Komotini land registry and therefore this only applied to the Greek properties. Accordingly, the Court took no substantive position on the applicant’s rights with respect to the properties in Turkey and held that they cannot form the basis of any just satisfaction claims.
Then, relying on Article 46 of the Convention, the Court explained that only States that are parties to a proceeding are bound by a judgment of the Court. The Court therefore held that Greece exercised no jurisdiction in respect of the proceedings in Turkey. However, the Court did note that it is possible for the applicant to bring an application against Turkey if the Turkish courts did not consider the findings of the principal judgment or draw from it the necessary consequences flowing from Turkey’s status as a Contracting State.
In addressing the issue of non-pecuniary damage, the Court ruled that the applicant was entitled to this on an equitable basis since she had sustained damage from the discrimination she suffered. Finally, with respect to costs and expenses, the applicant was awarded the full amounts claimed for the domestic proceedings as well as costs associated with the Grand Chamber hearing.
There are two points of criticism that can be made on this just satisfaction judgment. The first is on the meaning of the principal judgment and its very narrow interpretation in the present judgment. The Court noted that in finding a violation of Article 1 of Protocol No. 1, the applicant had registered the properties with the Komotini land registry and that this only applied to the Greek properties. However, the joint partly dissenting opinion of Judge Lemmens, Koskelo, and Eicke points out the obvious: that the land registry in Greece can only register property located in Greece so that ‘the mere fact that the applicant registered Greek properties with a Greek land registry cannot be an argument for excluding the Turkish properties from her claim’.
If the focus had indeed only been the registered Greek properties, then important questions of admissibility and merits remain to be addressed. After all, on the merits, the Court did not find any discrimination in relation to the registered properties or the way they were registered. Even with respect to admissibility, the enforceability of the applicant’s rights to these Greek properties is still at issue in the domestic courts. Therefore, the relevant ‘possession’ dealt with in the principal judgment must have been the entire estate, especially since no aspect of the applicant’s claim was deemed inadmissible or dismissed.
This unwillingness by the Court to engage extensively with the reasons behind its choice to limit the scope of the principal judgment in relation to the Turkish properties may perhaps be explained by a lack of precedent for it to rely upon. The case-law on Article 41 remains underdeveloped and the present judgment was, therefore, a chance for the Court to develop its case-law on Article 41, both in terms of the criteria necessary for a submission of a claim for damages as well as in providing a thorough evaluation of the principles underlying successful awards of compensation. However, the Court’s narrow interpretation of the principal judgment was presented with very little legal reasoning and risks rendering its value as mostly symbolic. The practical reality for the applicant is the loss of ownership over the Turkish properties that her husband had wished to bequeath to her. This is despite the principal judgment affirming that the decision to deprive the applicant of this property meant that she had been treated discriminatorily on grounds of religious beliefs. There seems to be no clear reason why this property should not also have included the Turkish properties and why she could not claim damages for being deprived of them. Accordingly, the present judgment underlines the risk that results from this lack of reasoning: a general unpredictability that stems from a lack of consistently-applied principles on compensation that tends to characterise judgments on Article 41.
The second point of criticism that can be made is on the methodology that should be applied once a violation has been established. It is arguable that the principles applying to the Greek properties should also be applied to the Turkish properties. This is especially so with respect to the Court’s approach to the question of causation. The Court simply assumes the necessary causal link between the illegal act – the Greek courts’ discriminatory invalidation of the will – and the potential change of the applicant’s title as registered in the land registry.
Yet in relation to the Turkish properties, the Court fails to engage at all with the question of whether there is the necessary causal link between the illegal act and the losses claimed in relation to the Turkish properties. The majority had been suggesting that the applicant’s claim could only succeed if she had made a complaint under the Convention against Turkey. It is suggested that a better approach would have been to consider whether there was a sufficient causal link between the Greek courts’ decision to invalidate the will (amounting to a breach of the Convention) and the Turkish courts’ refusal to give effect to this will, thereby rendering this aspect of her inheritance compensable ‘injury’ under Article 41.
The joint partly dissenting opinion cites the ICJ in its recent judgment in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, that: ‘In order to award compensation, the Court will ascertain …“whether there is a sufficiently direct and certain causal nexus between the wrongful act … and the injury suffered by the applicant”’. The partly dissenting opinion considers that the test may well be satisfied here: the Turkish courts did not apply any separate rule of Turkish public policy to refuse to give effect to the will (so as to potentially break the chain of causation). Yet in light of the potential responsibility of Turkey, Article 47 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) may be applied, such that: ‘Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.’ Therefore, the fact that two different states may have contributed to the damage suffered by the applicant should not have immediately deterred the Court from finding that Turkey had contributed to the damage by refusing to give effect to the husband’s will in light of the principal judgment.
At any rate, it is suggested that, in the absence of a clear methodology in its case-law with which to determine compensation, the Court should have started with the principles on reparation that apply under general public international law as summarised in ARSIWA. Article 31 ARSIWA states that: ‘the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’. This provision, therefore, highlights the need for ‘full’ reparation and, crucially, to undo all the consequences caused by denying the applicant her inheritance because she was placed in a different position from a married female beneficiary of the will of a non-Muslim husband.
It is this issue of causation that should be the main determinant of the outcome of the present judgment, but which was left unaddressed because there was no clear methodology with which the Court applied Article 41. At the very least, the Court could have applied the relevant principles under general public international law. In doing so, it would have awarded the applicant full reparations for both the Turkish and Greek properties since there is a strong case that there was a sufficient causal link that would have afforded her this.
The Court’s general evasiveness in explaining its pronouncements on just satisfaction is particularly striking here in relation to the question of causation. The Court should arguably have considered this issue much more thoroughly before dismissing the applicant’s claim in relation to the damages she asked for due to being deprived of ownership of the Turkish properties. Since the Article 41 judgment does not do so, it ‘renders her success in the principal judgment rather a Pyrrhic victory’, as the joint partly dissenting opinion notes. This would not have been the case if the Court had found a sufficient causal link between the decisions of the Turkish courts denying the applicant the inheritance under her husband’s civil will, and the judgment of the Greek courts which invalidated the husband’s civil will. For the Turkish courts to have simply accepted the decision of the Greek courts – even when it has been found to be in violation of the applicant’s rights under Article 14 and Article 1 of Protocol No. 1 – suggests a strong causal link. The ‘injury’ for which the applicant was entitled to just satisfaction should, therefore, have included the denial of her inheritance by the Turkish courts.
Without such an outcome in the just satisfaction judgment, the principal judgment only symbolically reaffirms the applicant’s right not to be treated discriminatorily on grounds of religious beliefs, and leaves her to face the practical reality of losing a significant proportion of the property that her husband wished to bequeath to her. Ultimately, this was a rare, but missed, opportunity for the Court to develop its case-law on Article 41. This just satisfaction judgment is a prime example of the difficulties that the provision raises for judges, especially when it comes to causation and to its own interpretations of its principal judgments. Accordingly, it is high time that the Court grappled with these difficulties in order to provide clear standardised guidelines for determining a successful claim for compensation so as to avoid leaving applicants such as Molla Sali, as well as future applicants relying on Article 41, in legal uncertainty.