ECHR

The Price of Human Rights Violations during War and Occupation

Tina Burjaliani
0 comments

On 12 May 2014, the Grand Chamber of the European Court of Human Rights (ECHR) ordered Turkey to pay 90 million euros to Cyprus. This is the first ever award of compensation imposed in an inter-state dispute by the ECHR for a party violating the European Convention on Human Rights. Before now this issue had remained open.

The 12 May 2014 judgment of the ECHR set an important precedent that will necessarily affect other inter-state disputes, including the two complaints Georgia has made against Russia, which are currently being considered in the ECHR. Council of Europe member states, which discuss the commencement of inter-state disputes, either publicly or backstage, will also take heed of this ruling. Such member states include Ukraine, which has already officially informed the ECHR about its intention to lodge a complaint against Russia; and Azerbaijan, which for years has closely been watching the proceedings underway at the ECHR and a number of its citizens have already filed complaints against Armenia because of a breach of the Convention as a result of the Nagorno-Karabakh conflict.

The case Cyprus v. Turkey concerns Turkey's armed invasion of the territory of Cyprus in 1974, which ended in the partition of the country and the formation of Northern Cyprus. This resulted in the eviction of the Greek Cypriot population from the territory of Northern Cyprus, with these people having been unable to return to their homes to date. The only exception to this pattern was the Karpass Peninsula, where a minority Greek population remained; however, due to difficult conditions, a large segment of them gradually left this territory.

Greek Cypriots in a combat position. Nicosia, 1974. Photo: AFP
International organizations, including the Council of Europe and its judicial body – the European Court of Human Rights – established that mass violations of human rights had occurred both during the Turkish military operation as well as in its aftermath. Some of those violations, including the infringement of property rights and the right of respect for private and family life, have been of a continuous nature.

Cyprus has long been struggling in the ECHR and other bodies of the Council of Europe to alter the status quo created in 1974. To this end, in 1994 it applied to the European Commission of Human Rights, the predecessor of the ECHR. The case was referred to the ECHR in 1999, which considered it on merit and delivered its principal judgment on 10 May 2001. In this judgment the ECHR held that Turkey was liable for the infringement of a number of rights and freedoms guaranteed by the Convention, including the right to life, the prohibition of torture and inhumane treatment, the right to freedom and security, the right of respect for private and family life, the freedom of religion, the right to private property, and the right to education.

In parallel with the inter-state Cyprus v. Turkey case, the ECHR also considered and, subsequently, established the liability of Turkey for the infringement of the rights of Greek Cypriots under the Convention in a number of individual cases.

In terms of individual cases, the ECHR, in accordance with common practice, applied Article 41 of the Convention and ordered Turkey, along with demands for the elimination of continued violations, to pay compensation to the victims. However, in the inter-state dispute between the two countries the ECHR acted differently, unanimously deciding to discuss the possible application of Article 41 and, consequently of monetary compensation, at a later stage.

With the aim of receiving monetary compensation, for a long time Cyprus opted for pursuing individual complaints, which Greek Cypriots filed against Turkey in abundance. However, the judgment on Varnava and Others v. Turkey, as delivered in 2009, made it clear that, because of procedural reasons, victims would not be able to get adequate compensation in individual cases. Moreover, the implementation of common measures as determined by the Committee of Ministers of the Council of Europe to Turkey remains a problem, thus impeding the elimination of violations of the Convention.

Nor has the inter-state judgment of 2001 been enforced in a speedy and efficient way. Even though 13 years have passed since the ruling of the Grand Chamber, the procedure of enforcement has not yet been completed. The Committee of Ministers of the Council of Europe, which is in charge of monitoring enforcement, still believes that the violations of the Convention and their consequences, as established in the case, have not yet been eliminated.

Against this backdrop, in 2007 the government of Cyprus informed the ECHR that it was interested in renewing consideration of the compensation issue, which had been postponed for an indefinite term by the decision of 10 May 2001.

In 2010, the government of Cyprus filed a corresponding complaint that put forth two demands. The first demanded that Turkey pay adequate compensation to the legal heirs of the 1,456 persons who went missing during, and as a result of, the Turkish military operation as well as to the Greek Cypriots living on the Karpass Peninsula in the period 1974-2001 – towards which the ECHR, in its 2001 ruling, held that Turkey was liable for having violated their rights as guaranteed by the Convention. The second demand was that the Court once again stress, regardless of resolving the issue of compensation, that Turkey remains obliged to enforce the 2001 ruling and eliminate the violations of the Convention that were established in that ruling, as well as the consequences of those violations.

The Court satisfied the demands of Cyprus and ordered Turkey to pay 90 million euros to the legal heirs of the missing people and the Greek Cypriots living on the Karpass Peninsula in the period 1974-2001. The money will be received by the government of Cyprus, which be responsible for distributing it among the victims within 18 months through a special mechanism operating under the supervision of the Committee of Ministers of the Council of Europe. The ECHR also held that enforcement of the 10 May 2001 judgment remains within the competence of the Committee of Ministers, thereby underscoring that this judgment will not be prejudiced by the ruling on compensation.

At the same time, the government of Cyprus explicitly declared that it had not demanded compensation for the breach of the right to property, including the right to access and use property. Settlement of this issue is part of the enforcement process of the 2001 ruling; however, Cyprus reserves the right to return to the issue if need be.

Presumably the approach taken by the government of Cyprus sought the goal of ensuring fair satisfaction to the victims; but, on the other hand, also wanted to prevent jeopardizing the enforcement procedures of the 2001 judgment. That is why Cyprus only demanded compensation for those violations whose consequences could not otherwise have been eliminated, thus ensuring the validity of the 2001 ruling.

With Cyprus's 2010 move to renew procedures related to the issue of compensation, the ECHR came to face the necessity of establishing standards as to in which cases countries in inter-state disputes, which have breached Article 41 of the Convention, can be ordered to pay compensation. However, given the politically sensitive nature of the subject, the ECHR managed to dodge this issue for years.

With the judgment of 12 May 2014, the Grand Chamber of the ECHR put an end to this uncertainty and established clear standards for applying compensation mechanisms in inter-state disputes. Apart from the amount of compensation imposed, it is important that the Grand Chamber of ECHR supported, by a vote of 16 to one, the application of compensation in the form of fair satisfaction in accordance with a general rule established in the Convention.

The Grand Chamber held that a state responsible for violating the Convention may be forced to pay compensation, especially when it concerns the violation of the rights of citizens of another country. Moreover, as individuals are the main victims of breaches of the Convention, the amount of compensation belongs to them. Consequently, in inter-state cases where the ECHR orders a defendant country to pay compensation, the suing country is obliged to distribute this sum among the victims.

This has sent an important message to the member states of the European Convention on Human Rights, especially to those who are currently parties to inter-state disputes.

The ECHR has been considering two inter-state complaints lodged by Georgia against Russia and, just recently, Ukraine has also notified the Court of its intent to file a complaint against Russia.
Consideration of the first inter-state complaint submitted by Georgia, which relates to the mass deportation of Georgians from the Russian Federation in autumn 2006, has already been completed. The Grand Chamber has been working on delivering its final decision on this case for two years already, but it is expected that this verdict will become known in the next few months.

The second complaint, concerning mass human rights violations committed by the Russian Federation, and persons subordinated to it, on the territory of Georgia during the 2008 military aggression and the subsequent occupation, is still in the early stages of consideration.

In both cases that Georgia has filed against Russia, it is of great importance to not only establish Russia's liability for violating the European Convention on Human Rights, but also to guarantee the payment of adequate and fair compensation to the victims of these violations.

The 12 May 2014 judgment of the Grand Chamber of ECHR on the case Cyprus v. Turkey gives grounds for optimism that Russia might be ordered to pay compensation to the victims without being alleviated of its obligations to eliminate ongoing violations and their consequences. This implies that the payment of monetary compensation will not prejudice the rights of refugees to return to their homes and exercise their right to property.

It is, however, important to take into account that even the best decision of the ECHR only has value in the event of it being honored and enforced by all parties. Unfortunately, the government of Turkey has already declared that it is not going to enforce the 12 May 2014 ruling of the ECHR. It is also worth noting that the 10 May 2001 ruling on the inter-state Cyprus v. Turkey case has not yet been enforced either.

Taking into account the unfavorable evidence concerning the enforcement of such precedents, it is likely that if Georgia wins its disputes with Russia and is awarded compensation, it will be very difficult, without international efforts and pressure, to make Russia behave in accordance with the Convention.

The 12 May 2014 judgment is a useful tool, which, if handled properly, significantly enhances the chances of Georgia to obtain concrete results from the complaints it has made against Russia to the ECHR.

Comments

Log in or Register