Cyprus v. Turkey (just satisfaction) [GC]

Information Note on the Court’s case-law 174

May 2014

Cyprus v. Turkey (just satisfaction) [GC] - 25781/94

Judgment 12.5.2014 [GC]

Article 41

Just satisfaction

Award to State applicant party in respect of its missing and enclaved citizens in northern Cyprus

Facts – In its Grand Chamber judgment delivered on 10 May 2001 (“the principal judgment”) the Court found numerous violations of the Convention by Turkey, arising out of the military operations it had conducted in northern Cyprus in July and August 1974, the continuing division of the territory of Cyprus and the activities of the “Turkish Republic of Northern Cyprus”. Regarding the issue of just satisfaction, the Court held unanimously that it was not ready for decision and adjourned its consideration. The procedure for execution of the principal judgment was, at the date of the instant judgment on just satfisaction, still pending before the Committee of Ministers.

Law – Article 41

(a) Admissibility

(i) Whether the claims are out of time – Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law. General international law, in principle, recognises the obligation of the applicant Government in an inter-State dispute to act without undue delay in order to uphold legal certainty and not to cause disproportionate harm to the legitimate interests of the respondent State*.

The present application was introduced in 1994, before the former European Commission of Human Rights, under the system previous to the entry into force of Protocol No. 11. Under the Rules of Procedure of the Commission then in force, neither an applicant Government in an inter-State case nor an individual applicant had to make a general indication of their just satisfaction claims in their application form. In a letter of 29 November 1999 sent to both Governments the Court had expressly instructed the applicant Government not to submit any claim for just satisfaction at the merits stage. In its judgment of 10 May 2001 the Court adjourned consideration of the possible application of Article 41 and no time-limits were fixed for the parties to submit their just satisfaction claims.

The impugned delay had occurred between the judgment of the Court on the merits and the continued supervision of the enforcement of that judgment by the Committee of Ministers. During this phase of the case both Governments were entitled to believe that the issue relating to a possible award of just satisfaction was in abeyance pending further developments. Moreover, the just satisfaction issue was repeatedly mentioned in the course of the proceedings on the merits.

In the principal judgment the issue of a possible award of just satisfaction was adjourned, which clearly and unambiguously meant that the Court did not exclude the possibility of resuming the examination of this issue at some appropriate point in the future. Neither of the parties could therefore reasonably have expected that this matter would be left unaddressed, or would be extinguished or nullified by the passage of time. Lastly, as the Cypriot Government had rightly pointed out, they had never expressly or impliedly renounced or waived their right to claim just satisfaction; on the contrary, their letter of 31 August 2007 should have been seen as a clear and unequivocal reassertion of that right. In these circumstances, the respondent Government were not justified in claiming that the resumption of the examination of the applicant Government’s claims was prejudicial to their legitimate interests. In the light of the Nauru judgment**, the Court considered that in this context, the “prejudice” element was first and foremost related to the respondent Government’s procedural interests, and that it was for the respondent Government to prove convincingly the imminence or likelihood of such a prejudice. However, the Court had seen no such proof in the present case.

In so far as the respondent Government referred to the supervisory proceedings before the Committee of Ministers, the Court reiterated that findings of a violation in its judgments are essentially declaratory, and that, by Article 46 of the Convention, the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. In this respect, it was important not to confuse, on the one hand, proceedings before the Court, which is competent to find violations of the Convention in final judgments which are binding on the States Parties (Article 19, in conjunction with Article 46 § 1) and to afford just satisfaction (Article 41) where relevant, and, on the other, the mechanism for supervising the execution of judgments under the Committee of Ministers’ responsibility (Article 46 § 2). Further, although the developments between 2001 and 2010 in the course of or in connection with the supervisory proceedings before the Committee of Ministers were undoubtedly relevant when assessing the substance of the applicant Government’s just satisfaction claim, they did not preclude the Court from examining it.

In the light of the foregoing, the Court saw no valid reason to consider the Cypriot Government’s claims for just satisfaction belated and to declare them inadmissible.

Conclusion: preliminary objection dismissed (unanimously).

(ii) Applicability – Bearing in mind its specific nature as lex specialis in relation to the general rules and principles of international law, Article 41 of the Convention does, as such, apply to inter-State cases. However, the question whether granting just satisfaction to an applicant State is justified has to be assessed and decided by the Court on a case-by-case basis, taking into account, inter alia, the type of complaint made by the applicant Government, whether the victims of violations can be identified, and also the main purpose of bringing the proceedings in so far as this can be discerned from the initial application to the Court. Where an application brought before the Court under Article 33 contains different types of complaints pursuing different goals, each complaint has to be addressed separately in order to determine whether awarding just satisfaction in respect of it would be justified.

Where an applicant Contracting Party complains about general issues in another Contracting Party, its primary goal is that of vindicating the public order of Europe within the framework of collective responsibility under the Convention. In such circumstances, it may not be appropriate to make an award of just satisfaction even if such a claim is made. However, where an applicant State denounces violations by another Contracting Party of the basic human rights of its nationals (or other victims), its claims are substantially similar not only to those made in an individual application under Article 34 of the Convention, but also to claims filed in the context of diplomatic protection. If the Court upholds this type of complaint and finds a violation of the Convention, an award of just satisfaction may therefore be appropriate having regard to the particular circumstances of the case and the criteria set out above. Nevertheless, it must always be kept in mind that, according to the very nature of the Convention, it is the individual, not the State, who is directly or indirectly harmed and primarily “injured” by a violation of one or several Convention rights. Therefore, if just satisfaction is afforded in an inter-State case, it should always be done for the benefit of individual victims.

In the present case the Cypriot Government submitted just satisfaction claims in respect of violations of the Convention rights of two sufficiently precise and objectively identifiable groups of people: 1,456 missing persons and the enclaved Greek Cypriot residents of the Karpas peninsula. In other terms, just satisfaction was not sought with a view to compensating the State for a violation of its rights but for the benefit of individual victims. In these circumstances, a claim under Article 41 was justified.

Conclusions: Article 41 applicable in respect of missing persons (sixteen votes to one); Article 41 applicable in respect of enclaved citizens (fifteen votes to two).

(b) Non-pecuniary damage – There was no doubt about the protracted feelings of helplessness, distress and anxiety of the Karpas residents whose rights under Articles 3, 8, 9, 10 and 13 of the Convention and of Article 2 of Protocol No. 1 had been violated as found in the principal judgment.

The surviving relatives of the missing persons were thus awarded EUR 30,000,000 and the enclaved residents of the Karpas peninsula EUR 60,000,000 in respect of non-pecuniary damage. The aforementioned sums were to be distributed by the applicant Government to the individual victims of the violations found in the principal judgment under these two heads.

Conclusion: EUR 90,000,000 in respect of non-pecuniary damage (fifteen votes to two).

(See also Ireland v. the United Kingdom, 5310/71, 18 January 1978)

* Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, 1992 ICJ Rep.

** In the Nauru case examined by the International Court of Justice (ICJ), the impugned delay occurred before the filing of the inter-State application.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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