Kipar protiv Turske

GRAND CHAMBER

CASE OF CYPRUS v. TURKEY

(Application no. 25781/94)

JUDGMENT

(Just satisfaction)

STRASBOURG

12 May 2014

 In the case of Cyprus v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of:

Josep Casadevall, President,
Françoise Tulkens,
Guido Raimondi,
Nina Vajić,
Mark Villiger,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Davíd Thór Björgvinsson,
George Nicolaou,
András Sajó,

Mirjana Lazarova Trajkovska,
Ledi Bianku,
Ann Power-Forde,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,

and Michael O’Boyle, Deputy Registrar,

Having deliberated in private on 14 March 2012, 10 April 2013, 27 June 2013 and 12 March 2014,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.  The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the Government of the Republic of Cyprus (“the applicant Government”) on 30 August 1999 and by the European Commission of Human Rights on 11 September 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

2.  In the course of the proceedings on the merits of the case, on 27 October 1999, the President of the Court met the Agent of the applicant Government and the Agent of the Government of the Republic of Turkey (“the respondent Government”) with a view to discussing some preliminary procedural issues in the case. The Agents accepted that, if the Court were to find a violation, a separate procedure would be required for dealing with claims under Article 41 of the Convention.

3.  By a letter of 29 November 1999, the Court instructed both parties as follows:

“The applicant Government are not required to submit any claim for just satisfaction under Article 41 of the Convention at this stage of the proceedings. A further procedure on this matter will be organised depending on the Court’s conclusions on the merits of the complaints.”

4.  In a judgment delivered on 10 May 2001 (Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001‑IV – “the principal judgment”), the Court (Grand Chamber) found numerous violations of the Convention by Turkey arising out of the Turkish military operations 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” (the “TRNC”). Concerning just satisfaction, the Court held unanimously that the issue of the possible application of Article 41 of the Convention was not ready for decision and adjourned consideration thereof.

5.  The case concerning the execution of the principal judgment is currently pending before the Committee of Ministers of the Council of Europe.

6.  On 31 August 2007 the applicant Government informed the Court that they intended to submit an “application to the Grand Chamber to resume its consideration of the possible application of Article 41 of the Convention”. On 11 March 2010 the applicant Government submitted to the Court their claims for just satisfaction concerning missing persons in respect of whom the Court had found a violation of Articles 2, 3 and 5 of the Convention (see Part II, points 2, 4 and 7 of the operative provisions of the principal judgment and the corresponding paragraphs to which they refer). They declared that the just-satisfaction issue with respect to the remaining violations, in particular those relating to homes and property of Greek Cypriots, remained reserved, and that they would possibly come back to this issue later. Both the applicant and the respondent Governments subsequently filed observations.

7.  On 7 April 2011 the President of the Court fixed the composition of the Grand Chamber for the purposes of ruling on the application of Article 41 of the Convention, by drawing lots (Rules 24 and 75 § 2 of the Rules of Court). Lots were subsequently drawn by the President of the Court to complete the composition (Rule 24 § 2 (e)).

8.  On 25 November 2011 the applicant Government sent to the Court a request entitled “Application for just satisfaction (Article 41) on behalf of the Republic of Cyprus”, targeting the enforcement procedure of the principal judgment by the Committee of Ministers of the Council of Europe and requesting the Court to take certain steps in order to facilitate the enforcement of the principal judgment.

9.  By a letter of 21 March 2012, following the deliberations of 14 March 2012, the Court invited the applicant Government to respond to some further questions, and to submit a final version of their claims for just satisfaction. In response, on 18 June 2012 the applicant Government amended their initial claims under Article 41 of the Convention concerning missing persons, and raised new just-satisfaction claims in respect of the violations of human rights (more precisely, Articles 3, 8, 9, 10 and 13 of the Convention and Article 2 of Protocol No. 1) of the enclaved Greek-Cypriot residents of the Karpas peninsula (see Part IV, points 4, 6, 11, 12, 15 and 19 of the operative provisions of the principal judgment and the corresponding paragraphs to which they refer). On 26 October 2012 the respondent Government submitted their observations on these claims.

THE LAW

10.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

11.  The relevant parts of Article 46 of the Convention read as follows:

“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

12.  Rule 60 of the Rules of Court states:

“1.  An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention in the event of the Court finding a violation of his or her Convention rights must make a specific claim to that effect.

2.  The applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits unless the President of the Chamber directs otherwise.

3.  If the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part.

4.  The applicant’s claims shall be transmitted to the respondent Contracting Party for comment.”

I.  THE APPLICANT GOVERNMENT’S CLAIMS FOR JUST SATISFACTION

A.  Admissibility

1.  Whether the applicant Government’s just-satisfaction claims are out of time

(a)  The parties’ submissions

(i)  The Cypriot Government

13.  The Cypriot Government recognised that their just-satisfaction claims were filed only on 11 March 2010, that is, almost nine years after the delivery of the principal judgment. However, they considered that their inaction between 2001 and 2010 was fully justified. Firstly, in the judgment on the merits, the Court had adjourned sine die the issue of the possible application of Article 41 of the Convention, leaving this question open. Both before and after the judgment, the applicant Government had simply waited for further instructions from the Court, which was supposed to fix the further procedure pursuant to its own Rules. Secondly, after the delivery of the principal judgment, Cyprus had hoped bona fide that it would be properly enforced through the usual mechanism of the Committee of Ministers of the Council of Europe. Only several years later, when it had become obvious that Turkey was unwilling to solve the issue by political means (that is, through the adoption of general and specific measures), had the Cypriot Government realised that it had no other option than to turn to the Court again, in order to ensure proper execution of the judgment by means of awarding just satisfaction. In particular, there was an impasse resulting from different interpretations of the decision in Demopoulos and Others v. Turkey ((dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010); unlike Turkey, the Cypriot Government did not consider that it could be interpreted as a finding that Turkey had satisfied its obligations in order to comply with the principal judgment. Moreover, it appeared from the relevant findings of the Committee of Ministers that the investigative measures required by the judgment have not been taken.

14.  Aware that a number of individual applications overlapping with the inter-State case were pending before the Court, the applicant Government considered that such individual claims had to be granted priority. However, in the light of the “newly reformulated time-limits” in Varnava and Others v. Turkey ([GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009), they had to make this claim in order not to lose their rights under Article 41.

15.  As to whether the time factor precludes the Court from examining the claims for just satisfaction, the Cypriot Government considered that there were six relevant principles of international law, that is to say: extinctive prescription, waiver and acquiescence, estoppel, res judicata, duty to maintain the status quo, and good faith. None of these justifies dismissal of the case based on time considerations. The applicant Government invoked the following basic arguments under the six principles quoted above. First of all, in the principal judgment, the Court had clearly stated that the matter had simply been adjourned – therefore it had been expressly left open indefinitely. Furthermore, a waiver of a right must be clear and unequivocal; it cannot be presumed. Cyprus had neither made an express or implied statement nor behaved in a way to show that it had renounced or waived its right to claim just satisfaction. On the contrary, in 2007 it had expressly asserted this right before the Court, and nobody had objected to that. It is rather Turkey which is now estopped from invoking an estoppel since it did not do so in 2007.

16.  According to the Cypriot Government, the passage of time had not caused any evidential disadvantage to the Turkish Government, because the facts had not changed; they were basically the same as in 2001. Moreover, Turkey could not have reasonably expected that the claim for just satisfaction would no longer be pursued. Finally, in 2001 it had been decided by the Court that the parties would await a final decision on the matter of just satisfaction, and the principle of good faith obliged them to maintain the existing situation as far as possible so that that final decision would not be prejudiced. It would undermine the principle of effectiveness if Turkey were permitted, through its failure to abide by the judgment, to frustrate the taking of that final decision.

17.  The Cypriot Government also invoked the legitimate expectations of the individual victims. They cited Article 55 of the Convention, by which the Contracting Parties have agreed “not [to] avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of [the] Convention to a means of settlement other than those provided for in [the] Convention”. It would be contrary to the principle of legitimate expectation to deny an adequate remedy in cases between two States, both of which have specifically agreed to confer jurisdiction on the Court and to exclude any other form of settlement.

(ii)  The Turkish Government

18.  The respondent Government considered that the applicant Government’s claims for just satisfaction were belated. Nothing, or very little, had happened between 2001 and 2010, apart from the letter sent to the Court in August 2007. Even assuming that Article 41 of the Convention applies in inter-State cases, the applicant Government remains bound by a minimal-diligence requirement according to Rule 60 of the Rules of Court, which requires that there should be no undue delay in the claims for just satisfaction under Article 41. In the present case the applicant Government had caused such an unacceptable delay.

19.  The Turkish Government observed that the Cypriot Government had not submitted any claims for just satisfaction in the course of the procedure on the merits of the case. In their written submissions of 22 November 1994, the applicant Government had not asked for just satisfaction, declaring instead that the inter-State application had been lodged “without prejudice to individual applications against Turkey under Article 25 [now Article 34] of the Convention which have already been made or which will be made in future”. This meant that Cyprus had indeed chosen to give precedence to the supervisory function of the Committee of Ministers and not to apply to the Court for just satisfaction. This was their choice at the time, but they could also have chosen otherwise: in fact, Articles 41 and 46 of the Convention have different purposes, and nothing prevented the Cypriot Government from presenting timely just-satisfaction claims concurrently with the supervisory proceedings before the Committee of Ministers. Anyway, it was up to the applicant Government to put the process in motion soon after the principal judgment and not to expect the Court to fix the procedure on its own motion. Having failed to do so, the applicant Government had not done everything they could reasonably have done to maintain and pursue their claim, and their behaviour had to be interpreted as implicitly dropping the claims for just satisfaction in the present case.

20.  The respondent Government also pointed to the fact that the just-satisfaction claims had been addressed to the Court only after the Grand Chamber had delivered its judgment in Varnava and Others, cited above, concerning a series of individual applications made under Article 34, and the sums initially claimed by the Cypriot Government amounted to 12,000 euros (EUR) in every case, which was exactly the sum granted to each of the individual applicants in Varnava and Others. This means that the Court’s judgment in Varnava and Others, which had limited the chances of success for individual applicants, had sounded an alarm bell for the applicant Government and prompted them to come back before the Court. However, according to the Turkish Government, both the principle of good faith and respect for the rule of res judicata should make it impossible for the Cypriot Government to revive this matter now; any claims for just satisfaction should be made in such individual applications (like Varnava and Others) rather than in the present inter-State case.

21.  According to the Turkish Government, the application of Article 41 would be unjustified, as the United Nations Committee on Missing Persons has evolved considerably since the delivery of the principal judgment. Contrary to the Cypriot Government’s allegations, there has been considerable progress in locating and identifying the victims’ remains – and this had been expressly recognised by the Court (see Charalambous and Others v. Turkey (dec.), nos. 46744/07 and others, 3 April 2012). Therefore, the “missing persons” issue gradually becomes a “dead persons” issue and, according to the Court’s judgment in Brecknell v. the United Kingdom (no. 32457/04, 27 November 2007), this creates substantively new procedural obligations with new time-limits. Thus, on the one hand, the supervisory proceedings before the Committee of Ministers remain effective and, on the other hand, the relatives of the missing persons should now await for the revival of the procedural obligation according to the Brecknell rule in order to protect their legitimate interests.

22.  The Turkish Government insisted that the specific temporal provisions of the Convention (as interpreted in Varnava and Others) should have precedence over the general principles of international law. More precisely, it is not possible to present claims in an inter-State application which would have been time-barred had they been raised in an individual application under Article 34. It would cause an immense prejudice to Turkey if individual claims which are time-barred could be revived in an application for just satisfaction submitted nearly nine years after the judgment on the merits.

(b)  The Court’s assessment

23.  The Court reiterates that the provisions of the Convention cannot be interpreted and applied in a vacuum. 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 and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969 (the “Vienna Convention”). As a matter of fact, the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see, among many others, Loizidou v. Turkey (merits), 18 December 1996, § 43, Reports of Judgments and Decisions 1996-VI; Al‑Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001‑XI; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005‑VI; Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008, and Article 31 § 3 (c) of the Vienna Convention).

24.  The Court acknowledges that general international law does, in principle, recognise the obligation of an 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. Thus, in the case of Certain Phosphate Lands in Nauru (Nauru v. Australia (preliminary objections), ICJ Reports 1992, p. 240), the International Court of Justice held:

“32.  The Court recognizes that, even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible. It notes, however, that international law does not lay down any specific time-limit in that regard. It is therefore for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible.

...

36.  ... The Court considers that, given the nature of relations between Australia and Nauru, as well as the steps thus taken, Nauru’s Application was not rendered inadmissible by passage of time. Nevertheless, it will be for the Court, in due time, to ensure that Nauru’s delay in seising it will in no way cause prejudice to Australia with regard to both the establishment of the facts and the determination of the content of the applicable law.”

25.  First and foremost, the Court observes that 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 (see paragraph 1 above). 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. The Court further reiterates that in its letter of 29 November 1999 sent to both Governments it had expressly instructed the applicant Government not to submit any claim for just satisfaction under Article 41 of the Convention at the merits stage (see paragraph 3 above); it is thus understandable that they did not do so. It also notes that in its judgment of 10 May 2001 it held “that the issue of the possible application of Article 41 of the Convention was not ready for decision and adjourn[ed] consideration thereof” (Part VIII of the operative provisions). No time-limits were fixed for the parties to submit their just-satisfaction claims (see paragraphs 2-4 above). The Court must ascertain whether, in spite of this absence of time-limits, the fact that the Cypriot Government did not submit their claims for just satisfaction until 11 March 2010 has nevertheless rendered these claims inadmissible according to the basic criteria defined in the Nauru case.

26.  The Court considers that this is not the case. In the first place, unlike in the Nauru case examined by the International Court of Justice, the impugned delay did not occur before the filing of the inter-State application but between the judgment of this Court on the merits of the case and the continued supervision of the enforcement of this 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 of the case (see paragraphs 2-3 above). In the principal judgment the issue of a possible award of just satisfaction was adjourned, which clearly and unambiguously meant that the Court had not excluded the possibility of resuming the examination of this issue at some appropriate point in the future. Neither of the parties could therefore reasonably expect that this matter would be left unaddressed, or that it would be extinguished or nullified by the passage of time. Lastly, as the Cypriot Government have rightly pointed out, they had never made an express or implied statement showing that they had renounced or waived their right to claim just satisfaction; on the contrary, their letter of 31 August 2007 should be seen as a clear and unequivocal reassertion of this right. In these circumstances the respondent Government are not justified in claiming that the resumption of the examination of the applicant Government’s claims would be prejudicial to their legitimate interests, as they should have reasonably expected this matter to come back before the Court at some point. In the light of the Nauru judgment, cited above, the Court considers that in this context, the “prejudice” element is first and foremost related to the procedural interests of the respondent Government (“the establishment of the facts and the determination of the content of the applicable law”), and that it was for the respondent Government to prove convincingly the imminence or the likelihood of such a prejudice. However, the Court sees no such proof in the present case.

27.  In so far as the Turkish Government have referred to the supervisory proceedings before the Committee of Ministers, the Court reiterates 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 (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 61, ECHR 2009). In this respect, one should not 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 hand, the mechanism for supervising the execution of judgments, which is under the Committee of Ministers’ responsibility (Article 46 § 2). Under Article 46, the State Party is under an obligation not just to pay those concerned the sums awarded by the Court by way of just satisfaction, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (ibid., § 85). Albeit connected with each other, the obligation to take individual and/or general measures and the payment of just satisfaction are two distinct forms of redress, and the former in no way precludes the latter.

28.  As to the developments between 2001 and 2010 in the course of or in connection with the supervisory proceedings before the Committee of Ministers, the Court considers that these developments are undoubtedly relevant when assessing the substance of the applicant Government’s just-satisfaction claim; however, they do not preclude the Court from examining this claim.

29.  In the light of the foregoing, the Court sees no valid reason to consider the Cypriot Government’s claims for just satisfaction as belated and to declare them inadmissible. The Turkish Government’s objection must therefore be dismissed.

30.  The Court also reiterates that on 14 March 2012 it had invited the applicant Government to submit a “final” version of their just-satisfaction claims, and that their resulting submissions of 18 June 2012 have to be seen, indeed, as final. Consequently the Court considers that the present judgment concludes the consideration of the matter.

2.  Applicability of Article 41 of the Convention to the present case

(a)  The parties’ submissions

(i)  The Cypriot Government

31.  The applicant Government argued that Article 41 of the Convention is applicable in inter-State cases in general and in the present case in particular. First of all, they pointed to the fact that the very text of Article 41 makes no distinction between individual cases and inter-State cases, the latter not being expressly excluded from the scope of the just-satisfaction rule. They also referred to the principle of the effectiveness of individual rights protected by the Convention. The applicant Government proposed that this norm should be viewed in the light of two other principles defined by the Court’s case-law: on the one hand, the status of the Convention as an instrument of public international law which has to be interpreted in accordance with the rules and principles codified in the 1969 Vienna Convention on the Law of Treaties and, on the other hand, the specific object and purpose of the Convention as an international human rights treaty. According to the Cypriot Government, these principles are particularly pertinent to the Court’s ability to award just satisfaction under Article 41 of the Convention, which ensures that there is an effective means of enforcing the Convention and encouraging the Contracting Parties not to ignore the Court’s rulings. In other words, Article 41 must be interpreted as an important tool at the Court’s disposal with a view to achieving compliance with its own judgments, both in individual cases under Article 34 and in inter-State cases under Article 33.

32.  The applicant Government also referred to Article 32 § 1 of the Convention, according to which “[t]he jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47”. In their view, these four Articles must be seen as part of a unique structured system together with Article 32 § 1: Articles 33, 34, 46 and 47 establish different routes by which a case may come before the Court, but they do not establish distinct spheres or types of jurisdiction for the Court. No matter how an application against a State comes before the Court, the jurisdiction of the latter remains the same and includes the competence to grant just satisfaction. There is no good reason to think otherwise, since the human rights at stake are the same and possibly even more serious than in an individual case; in addition, the authors of the Convention did not put a restriction on the ability to grant just satisfaction expressly in the text of Article 41; and finally, there is no indication that there is an implied restriction resulting from the very logic of this provision (or of Article 33). Therefore it cannot be said that the Court has fewer powers in respect of cases that come before it by means of an inter-State application than it has in respect of cases brought by way of an individual application.

33.  According to the Cypriot Government, the Court itself has always implicitly regarded Article 41 as applicable in inter-State cases, and this is reflected both in the Rules of Court and in the Court’s case-law. In this respect, they quoted Rule 46 (e), according to which the applicant Government in an inter-State case has to submit an application setting out “a general indication of any claims for just satisfaction made under Article 41 of the Convention on behalf of the alleged injured party or parties” as well as Rules 60 and 75 § 1, which do not distinguish between individual and inter-State applications.

34.  As to the Court’s case-law, the Cypriot Government considered that the Court had itself recognised implicitly, but quite clearly, that the just-satisfaction rule does apply in inter-State cases. Thus, in Ireland v. the United Kingdom (18 January 1978, §§ 244-46, Series A no. 25) the Court, instead of declaring former Article 50 inapplicable, had simply considered that it was “not necessary to apply it”. Likewise, in the present case the Court merely adjourned the consideration of the issue of just satisfaction, instead of dismissing it.

35.  Finally, the applicant Government pointed out that the Court has discretionary power under Article 41. Both the case-law of the Court and legal scholars have always emphasised that, when the Court awards just satisfaction, the application of Article 41 is a matter entirely within the Court’s discretion in any given case, including an inter-State application. In the present case, the Cypriot Government’s claim for just satisfaction is not a claim for pecuniary damages directly caused to Cyprus as a State, but rather a claim for the awarding of just satisfaction to the individual injured parties, its nationals, in respect of violations already determined to have taken place.

(ii)  The Turkish Government

36.  The Turkish Government considered that, as a general rule, Article 41 does not apply to inter-State cases. In the first place, the operative provisions of the principal judgment cannot be construed as a recognition, albeit implicit, of the applicability of the just-satisfaction rule in inter-State cases. In the judgment, the Court spoke merely of a “possible” application of Article 41. The Turkish Government also argued that the Grand Chamber judgment in Varnava and Others (cited above, § 118) had to be interpreted as recognising the lack of jurisdiction of the Court to afford just satisfaction in an inter-State case. Furthermore, the respondent Government proposed to examine Article 41 of the Convention in the general context of the law of international responsibility, the law of diplomatic protection and the principles of the international protection of human rights. While Article 33 basically corresponds to the classical logic of diplomatic protection (a direct State-to-State liability), Article 34 constitutes a derogation from this logic: individuals may, through individual applications, act directly against the allegedly wrongdoing State and request just satisfaction without having to solicit the diplomatic protection of their national State. For the Turkish Government, this description justifies the conclusion that Article 41 of the Convention does not apply to inter-State proceedings except, perhaps, where the violation has caused a direct injury to the complaining State Party. In other words, the scope of Article 41 as such is limited in principle to the mechanism of individual applications.

37.  Another argument used by the respondent Government in favour of the non-applicability of Article 41 to inter-State cases is that such cases are not motivated by the applicant’s self-interest. In this respect, the Turkish Government referred to the case-law of the European Commission of Human Rights, according to which the applicant State in an inter-State case does not enforce its own rights, or the rights of its nationals, but rather vindicates the public order of Europe (see Austria v. Italy, no. 788/60, Commission decision of 11 January 1961, Yearbook 6, p. 116). Indeed, inter-State applications aim at complaining about a pattern of official conduct giving rise to continuing breaches of the Convention. Inter-State complaints should by definition be broader than individual complaints; they should relate to systemic failures rather than to individual violations. In this context, the finding of a violation in itself achieves the purpose of an inter-State litigation. On the other hand, every individual applicant has the opportunity to lodge his or her own application with the Court according to Article 34 of the Convention, and to obtain just satisfaction; therefore it would be wrong to confuse these procedures which have such different purposes.

38.  Referring to the Court’s case-law, the respondent Government considered that just satisfaction under Article 41 of the Convention was meant to include physical or psychological trauma, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, etc. These factors exclusively pertain to the suffering of an individual applicant, that is to say, of a natural person, and have no meaning in an inter-State case. As to the Rules of Court, the respondent Government argued that the use of the animate personal pronouns “his” or “her” (instead of “its”) in Rule 60 § 1 showed that this rule concerns only individuals, and not States.

(b)  The Court’s assessment

39.  The Court observes that until now, the only case where it has had to deal with the applicability of the just-satisfaction rule in an inter-State case was the judgment in Ireland v. the United Kingdom, cited above. In that case, the Court found that it was not necessary to apply this rule (former Article 50 of the Convention) as the applicant Government had expressly declared that they “[did] not invite the Court to afford just satisfaction ..., of the nature of monetary compensation, to any individual victim of a breach of the Convention” (ibid., §§ 245-46).

40.  The Court further reiterates that the general logic of the just-satisfaction rule (Article 41, or former Article 50 of the Convention), as intended by its drafters, is directly derived from the principles of public international law relating to State liability, and has to be construed in this context. This is confirmed by the travaux préparatoires to the Convention, according to which,

“... [t]his provision is in accordance with the actual international law relating to the violation of an obligation by a State. In this respect, jurisprudence of the European Court will never, therefore, introduce any new element or one contrary to existing international law ...” (Report presented by the committee of experts to the Committee of Ministers of the Council of Europe on 16 March 1950 (Doc. CM/WP 1(50)15)).

41.  The most important principle of international law relating to the violation, by a State, of a treaty obligation is “that the breach of an engagement involves an obligation to make reparation in an adequate form” (see the judgment of the Permanent Court of International Justice in the case of the Factory at Chorzów (jurisdiction), Judgment No. 8, 1927, PCIJ, Series A, no. 9, p. 21). Despite the specific character of the Convention, the overall logic of Article 41 is not substantially different from the logic of reparations in public international law, according to which “[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it” (see the judgment of the International Court of Justice in Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, p. 81, § 152). It is equally well-established that an international court or tribunal which has jurisdiction with respect to a claim of State responsibility has, as an aspect of that jurisdiction, the power to award compensation for damage suffered (see the judgment of the International Court of Justice in the Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland) (merits), ICJ Reports 1974, pp. 203-05, §§ 71-76).

42.  In these circumstances, bearing in mind the specific nature of Article 41 as lex specialis in relation to the general rules and principles of international law, the Court cannot interpret this provision in such a narrow and restrictive way as to exclude inter-State applications from its scope. On the contrary, such an interpretation is confirmed by the wording of Article 41 which provides for “afford[ing] just satisfaction to the injured party” (in French – “à la partie lésée”); a “party” (with a lower-case “p”) has to be understood as one of the actual parties to the proceedings before the Court. The respondent Government’s reference to the current wording of Rule 60 § 1 of the Rules of Court (paragraphs 12 and 38 above) cannot be deemed convincing in this respect. In fact, this norm, of a lower hierarchical value compared to the Convention itself, only reflects the obvious reality that in practice all the awards made by the Court under this provision until now have been directly granted to individual applicants.

43.  The Court therefore considers that 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, as well as the main purpose of bringing the proceedings in so far as this can be discerned from the initial application to the Court. The Court acknowledges that an application brought before it under Article 33 of the Convention may contain different types of complaints pursuing different goals. In such cases each complaint has to be addressed separately in order to determine whether awarding just satisfaction in respect of it would be justified.

44.  Thus, for example, an applicant Contracting Party may complain about general issues (systemic problems and shortcomings, administrative practices, etc.) in another Contracting Party. In such cases the primary goal of the applicant Government is that of vindicating the public order of Europe within the framework of collective responsibility under the Convention. In these circumstances it may not be appropriate to make an award of just satisfaction under Article 41 even if the applicant Government were to make such a claim.

45.  There is also another category of inter-State complaint where the applicant State denounces violations by another Contracting Party of the basic human rights of its nationals (or other victims). In fact such 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, that is, “invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility” (Article 1 of the International Law Commission Draft Articles on Diplomatic Protection, 2006, see Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), as well as the judgment of the International Court of Justice in the case of Diallo (Guinea v. Democratic Republic of the Congo) (preliminary objections), ICJ Reports 2007, p. 599, § 39). If the Court upholds this type of complaint and finds a violation of the Convention, an award of just satisfaction may be appropriate having regard to the particular circumstances of the case and the criteria set out in paragraph 43 above.

46.  However, it must always be kept in mind that, according to the very nature of the Convention, it is the individual, and 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 this respect, the Court notes that Article 19 of the above-mentioned Articles on Diplomatic Protection recommends “transfer[ring] to the injured person any compensation obtained for the injury from the responsible State subject to any reasonable deductions”. Moreover, in the above-mentioned Diallo case the International Court of Justice expressly indicated that “the sum awarded to [the applicant State] in the exercise of diplomatic protection of Mr Diallo is intended to provide reparation for the latter’s injury” (see Diallo (Guinea v. Democratic Republic of the Congo) (compensation), ICJ Reports 2012, p. 344, § 57).

47.  In the present case the Court finds that the Cypriot Government has submitted just-satisfaction claims in respect of violations of the Convention rights of two sufficiently precise and objectively identifiable groups of people, that is, 1,456 missing persons and the enclaved Greek-Cypriot residents of the Karpas peninsula. In other words, just satisfaction is not sought with a view to compensating the State for a violation of its rights but for the benefit of individual victims, as described in paragraph 45 above. In these circumstances, and in so far as the missing persons and the Karpas residents are concerned, the Court considers that the applicant Government are entitled to make a claim under Article 41 of the Convention, and that granting just satisfaction in the present case would be justified.

B.  Just satisfaction claims of the Cypriot Government

1.  The parties’ submissions

(a)  Claims concerning missing persons

(i)  The Cypriot Government

48.  The Cypriot Government declared that, in view of the outcome of the cases of Varnava and Others, cited above, and Karefyllides and Others v. Turkey ((dec.), no. 45503/99, 1 December 2009), “it now appear[ed] that individual claimants in respect of continuing violations concerning disappearances of family members, [could] not (unless there [was] new evidence or information giving rise to fresh obligations for the authorities to take further investigative measures) bring claims to the Court because of the new admissibility rulings”. The applicant Government recognised that out of 1,485 missing persons mentioned in paragraph 119 of the principal judgment, some should be excluded. Firstly, nine missing persons were already covered by individual applications in the Varnava and Others case. Secondly, the remains of twenty-eight persons had been exhumed and identified, but it had not been established that they had died as a consequence of Turkey’s action; therefore no claim could be made in respect of these people. On the other hand, the applicant Government insisted on the factual accuracy of the existing list of missing persons, the Turkish party never having challenged the validity of that list. Therefore, just satisfaction is sought for 1,456 persons.

49.  In their initial observations the Cypriot Government requested EUR 12,000 per missing person, this sum corresponding to the amount awarded by the Court in Varnava and Others, but in the final version of their observations they abandoned this claim and instead requested the Court to award just satisfaction “at a standard rate in accordance with equitable principles”. In this respect, the Cypriot Government considered that the sum of EUR 12,000 per person awarded in Varnava and Others did not correspond to the considerably higher amounts awarded in other recent and legally similar cases. The just-satisfaction amounts should be granted by the Court to the Cypriot Government, which would then distribute them among individual victims, that is, among family members of the missing persons.

(ii)  The Turkish Government

50.  The Turkish Government argued that the Court had not made any specific finding as to the number of missing persons in the judgment on the merits. Therefore the applicant Government was not justified in making hypothetical claims on behalf of unidentified beneficiaries. The relatives of the missing persons should now wait for the revival of the procedural obligation according to the principles enshrined in Brecknell, cited above. Due to the passage of time, the number of possible beneficiaries may have varied; the legal interests of some may have disappeared, etc. Moreover, it is difficult to ensure a precise calculation of damages. This situation has been aggravated by the absence of action for nearly nine years since the judgment on the merits, which is not imputable to Turkey.

(b)  Claims concerning residents of the Karpas peninsula

(i)  The Cypriot Government

51.  In their observations of 18 June 2012, the Cypriot Government claimed just satisfaction not only in respect of the missing persons, but also in respect of the violations of human rights of the Greek Cypriots of the Karpas peninsula, as found by the Grand Chamber. More precisely, these new claims concerned the violations of Articles 3, 8, 9, 10 and 13 of the Convention and Article 2 of Protocol No. 1 found by the Court. The Cypriot Government emphasised that these new claims did not concern the violation-of-property rights under Article 1 of Protocol No. 1.

52.  In this respect, the Cypriot Government requested the following:

“Taking into account the fact that the Karpas residents were not victims of just a single and isolated violation (as in the cases referred to above) but were victims of multiple state endorsed and racially motivated violations over many years, the above yardsticks would suggest a modest award of non-pecuniary losses of no less than 50,000 [pounds sterling (GBP)] per individual. It is to be recalled that the Court held that Turkey’s acts debased and violated the very notion of respect for the dignity of the members of the Karpas community.

(1)  The Court should direct Turkey to pay to Cyprus an amount of [GBP] 50,000 per Greek Cypriot resident of the Karpas peninsula between July 1974 and the date of the Grand Chamber’s judgment in May 2001 (Cyprus will then distribute the sums to victims or their heirs ...);

(2)  The number of such residents is to be agreed between the parties within 6 months of the Court’s order and, in the absence of agreement, to be resolved by the President of the Court on the basis of written evidence and submissions as to the number and location of residents and their heirs.”

(ii)  The Turkish Government

53.  The Turkish Government emphasised at the outset that it took the Cypriot Government over eleven years after the delivery of the principal judgment to make their claims. Moreover, they had made no effort to identify the number of possible beneficiaries. Finally, the applicant Government’s assertions concerned facts going back to 1974, whereas the former Commission had ruled in its report that it could only examine allegations of violations allegedly committed within a six-month period preceding the date of the application.

54.  The Turkish Government further explained that the living conditions in Karpas had improved, and that there existed a functioning court system in the “TRNC” which is open to Greek Cypriots living in the North.

55.  According to the Turkish Government, Article 41 does not create any entitlement to just satisfaction, and there is an element of discretion in the very text of this provision. In the context of the present case, the Court has to take into account the ongoing enforcement process before the Committee of Ministers. Finally, the Convention does not guarantee a right to punitive damages; the Court has consistently rejected such claims. In the present case, the respondent Government considered that the Court should decide that the finding of a violation in the judgment on the merits offers sufficient satisfaction.

2.  The Court’s assessment

56.  The Court would reiterate its general statement made in the case of Varnava and Others, cited above, and which is also pertinent to any award of damages in an inter-State case:

“224.  The Court would observe that there is no express provision for non-pecuniary or moral damage. Evolving case by case, the Court’s approach in awarding just satisfaction has distinguished situations where the applicant has suffered evident trauma, whether physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, or real loss of opportunity ... and those situations where the public vindication of the wrong suffered by the applicant, in a judgment binding on the Contracting State, is a powerful form of redress in itself. In many cases where a law, procedure or practice has been found to fall short of Convention standards this is enough to put matters right ... In some situations, however, the impact of the violation may be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the applicant as to require something further. Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court’s role to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.”

The Court also emphasised that “the applicants [in that case] ha[d] endured decades of not knowing, which must have marked them profoundly” (ibid., § 225).

57.  To this, the Court can only add that there is 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 Article 2 of Protocol No. 1 were found in the principal judgment to have been violated.

58.  In view of all the relevant circumstances of the case, and making its assessment on an equitable basis, the Court considers it reasonable to award the Cypriot Government aggregate sums of EUR 30,000,000 for non-pecuniary damage suffered by the surviving relatives of the missing persons, and EUR 60,000,000 for non-pecuniary damage suffered by the enclaved residents of the Karpas peninsula, plus any tax that may be chargeable on these amounts. The aforementioned sums are to be distributed by the applicant Government to the individual victims of the violations found in the principal judgment under these two heads (see, mutatis mutandis, the judgment of the International Court of Justice in the case of Diallo (compensation), cited above).

59.  The Court further reiterates that according to Article 46 § 2 of the Convention it falls to the Committee of Ministers to supervise the execution of the Court’s judgments. In the particular circumstances of the case the Court considers that it must be left to the Cypriot Government, under the supervision of the Committee of Ministers, to set up an effective mechanism to distribute the above-mentioned sums to the individual victims. This distribution must be carried out within eighteen months from the date of the payment by the respondent Government or within any other period considered appropriate by the Committee of Ministers.

C.  Default interest

60.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

II.  THE CYPRIOT GOVERNMENT’S APPLICATION FOR A “DECLARATORY JUDGMENT”

61.  In their application of 25 November 2011, the Cypriot Government requested the Court to adopt a “declaratory judgment” stating:

“(i)  that Turkey is required by Article 46 to abide by the judgment in Cyprus ν. Turkey by abstaining from permitting, participating or acquiescing or being otherwise complicit in, the unlawful sale and exploitation of Greek Cypriot homes and property in the northern part of Cyprus;

(ii)  that this obligation arising under Article 46 is not discharged by the Court’s admissibility decision in Demopoulos and Others.”

62.  The Court observes that the respondent State is bound by Article 46 and thus by its international obligations to comply with the principal judgment. It reaffirms the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under the above-mentioned provision, and that the supervision of the execution of the Court’s judgments is the responsibility of the Committee of Ministers.

63.  The Court considers that it is not necessary to examine the question whether it has the competence under the Convention to make a “declaratory judgment” in the manner requested by the applicant Government since it is clear that the respondent Government is, in any event, formally bound by the relevant terms of the main judgment. It is recalled in this connection that the Court has held that there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property, as well as any compensation for the interference with their property rights (Part III, point 4 of the operative provisions of the principal judgment). It thus falls to the Committee of Ministers to ensure that this conclusion, which is binding in accordance with the Convention, and which has not yet been complied with, is given full effect by the respondent Government. Such compliance could not, in the Court’s opinion, be consistent with any possible permission, participation, acquiescence or other form of complicity in any unlawful sale or exploitation of Greek-Cypriot homes and property in the northern part of Cyprus. Furthermore, the Court’s decision in the case of Demopoulos and Others, cited above, to the effect that cases presented by individuals concerning violation-of-property complaints were to be rejected for non-exhaustion of domestic remedies, cannot be considered, taken on its own, to dispose of the question of Turkey’s compliance with Part III of the operative provisions of the principal judgment in the inter-State case.

FOR THESE REASONS, THE COURT

1.  Holds, by sixteen votes to one, that the passage of time since the delivery of the principal judgment on 10 May 2001 has not rendered the applicant Government’s just-satisfaction claims inadmissible;

2.  Holds, by sixteen votes to one, that Article 41 applies to the present case in so far as the missing persons are concerned;

3.  Holds, by fifteen votes to two, that Article 41 applies to the present case in so far as the enclaved Greek-Cypriot residents of the Karpas peninsula are concerned;

4.  Holds, by fifteen votes to two,

(a)  that the respondent Government is to pay the applicant Government, within three months, EUR 30,000,000 (thirty million euros), plus any tax that may be chargeable, in respect of non-pecuniary damage suffered by the relatives of the missing persons;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

(c)  that the above amount shall be distributed by the applicant Government to the individual victims under the supervision of the Committee of Ministers within eighteen months from the date of the payment or within any other period considered appropriate by the Committee of Ministers;

5.  Holds, by fifteen votes to two,

(a)  that the respondent Government is to pay the applicant Government, within three months, EUR 60,000,000 (sixty million euros), plus any tax that may be chargeable, in respect of non-pecuniary damage suffered by the enclaved Greek-Cypriot residents of the Karpas peninsula;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

(c)  that the above amount shall be distributed by the applicant Government to the individual victims under the supervision of the Committee of Ministers within eighteen months from the date of the payment or within any other period considered appropriate by the Committee of Ministers.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg on 12 May 2014.

Michael O’BoyleJosep Casadevall              Deputy Registrar              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  joint concurring opinion of Judges Zupančič, Gyulumyan, Davíd Thόr Björgvinsson, Nicolaou, Sajό, Lazarova Trajkovska, Power-Forde, Vučinić and Pinto de Albuquerque;

(b)  concurring opinion of Judge Pinto de Albuquerque, joined by Judge Vučinić;

(c)  partly concurring opinion of Judges Tulkens, Vajić, Raimondi and Bianku, joined by Judge Karakaş;

(d)  partly concurring and partly dissenting opinion of Judge Casadevall;

(e)  dissenting opinion of Judge Karakaş.

J.C.M
M.O’B

JOINT CONCURRING OPINION OF JUDGES ZUPANČIČ, GYULUMYAN, DAVÍD THÓR BJÖRGVINSSON, NICOLAOU, SAJÓ, LAZAROVA TRAJKOVSKA, POWER‑FORDE, VUČINIĆ AND
PINTO DE ALBUQUERQUE

The present judgment heralds a new era in the enforcement of human rights upheld by the Court and marks an important step in ensuring respect for the rule of law in Europe. It is the first time in the Court’s history that the Court has made a specific judicial statement as to the import and effect of one of its judgments in the context of execution.

The Court’s statement, couched in strong and clear terms, is directed to a particular aspect of the execution process still pending before the Committee of Ministers. It is rendered all the more powerful, in what it signifies, by reason of the view expressed by the Court that, in the circumstances, such a statement does, of itself, obviate the need to examine whether a formal declaratory judgment for the purposes of Article 46 of the Convention might be issued under Article 41. The Court has spoken: it remains for it to be heard.

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE, JOINED BY JUDGE VUČINIĆ

1.  The Cyprus v. Turkey (just satisfaction) case is the most important contribution to peace in Europe in the history of the European Court of Human Rights (“the Court”). The Court has not only acknowledged the applicability of Article 41 of the European Convention on Human Rights (“the Convention”) to inter-State applications and established criteria for the assessment of the time-limit for these just-satisfaction claims, but has awarded punitive damages to the claimant State[1]. The message to member States of the Council of Europe is clear: those member States that wage war, invade or support foreign armed intervention in other member States must pay for their unlawful actions and the consequences of their actions, and the victims, their families and the States of which they are nationals have a vested and enforceable right to be duly and fully compensated by the responsible warring State. War and its tragic consequences are no longer tolerable in Europe and those member States that do not comply with this principle must be made judicially accountable for their actions, without prejudice to additional political consequences.

In view of the historical importance of this judgment and the parsimonious and sometimes equivocal reasoning of the judgment, I feel that I have a duty to state the reasons why I concur with the findings of the Court. Hence, this opinion will deal with the following issues: the Court’s power to award compensation in inter-State cases, the time-limit for inter-State just-satisfaction claims, the punitive nature of the damages awarded under the Convention in general and in the circumstances of this case, and the Court’s power to deliver a declaratory judgment on the cessation of ongoing violations[2].

The Court’s power to award just satisfaction in inter-State cases

2.  Article 41 of the Convention does not preclude the award of just satisfaction in inter-State claims. Moreover, Rule 46 of the Rules of Court establishes this possibility of claiming damages in inter-State cases in absolutely clear terms. The fact that Rule 60 refers to “his or her” and not to “its” Convention rights is not decisive, since this provision is evidently secondary to Rule 46, which sets forth the contents of an inter‑State application, and in any case to the Convention itself.

3.  During the previous stages of this case, the Court explicitly admitted this interpretation of the Convention by acknowledging, in three different formal statements, that the question of just satisfaction could be put by the claimant State in a separate procedure after the judgment on the merits. These statements can be found in (a) the briefing note of the President of the Court of 10 November 1999, according to which “[o]ne hearing should be devoted to the admissibility and the merits of the application leading to one judgment. This is without prejudice to the need to organise a separate procedure for Article 41 claims should the Court find a breach(es) of the Convention on the merits”[3]; (b) the instructions of the Court to the parties of 29 November 1999, which state that “[t]he applicant Government are not required to submit any claim for just satisfaction under Article 41 of the Convention at this stage of the proceedings. A further procedure on this matter will be organised depending on the Court’s conclusions on the merits of the complaints”; and (c) the judgment of the Grand Chamber of 10 May 2001 itself, according to which the Court “[h]olds unanimously that the issue of the possible application of Article 41 of the Convention is not ready for decision and adjourns consideration thereof”[4]. With regard to the specific non-pecuniary damage suffered by the Karpas residents, it was the Grand Chamber that invited the claimant Government to present a “final version” of their claims for just satisfaction. Nothing prevented the claimant State from referring to new civil claims in their response to the Court’s invitation, as long as these related to violations recognised in the Grand Chamber judgment of 2001. The civil claim in respect of the Karpas residents refers to violations recognised in the Grand Chamber’s judgment, and thus is within the remit of the Grand Chamber.

4.  The respondent State’s main argument against the admissibility of the present claim was that the Convention system did not, as a matter of principle, allow individual claims under Article 41 to be grafted onto an inter-State application. This view is wrong. The Court’s statement of principle as to the admissibility of compensation in inter-State cases is in accordance with the traditional meaning of former Article 50 of the Convention, as a norm establishing only inter-State obligations[5], and with the right to diplomatic protection, according to which any State may assume the position of claimant in respect of damage suffered by its nationals[6]. The fact that individuals may nowadays, through individual applications, act against the wrongdoing State without having to solicit the diplomatic protection of their national State does not mean that diplomatic protection is no longer available or even that it has lost its former importance. One legal avenue does not exclude the other. Article 33 claims are not exclusively aimed at upholding the European public order, but may also simultaneously seek to protect and satisfy the interests of one or more nationals of the applicant State[7]. In fact, the rights at stake in an Article 41 claim are the same as those in an Article 33 claim, and the decision to use the latter only reflects the greater scale of the alleged violations, which in turn justifies greater, not lesser, powers on the part of the Court.

5.  Finally, the Court would be deprived of a crucial instrument for the attainment of its human rights protection mission were it not empowered to determine damages in inter-State cases. Thus, awarding damages in such cases can be taken, if not as an explicit power, at least as an implied power of the Court[8]. In conclusion, the teleological interpretation of the Convention reinforces the conclusion already imposed by the textual, historical and systemic construction of both the Convention and the Rules of Court, the Court’s practice and the relevant principles of public international law as established in the Vienna Convention on the Law of Treaties and further developed in the Draft Articles on Diplomatic Protection and the Draft Articles on Responsibility of States for Internationally Wrongful Acts, and in the international case-law.

The time-limit for inter-State just-satisfaction claims

6.  As a general principle, the right of a State to invoke the responsibility of another State may be forfeited in two cases: waiver or acquiescence. Just as a State may explicitly waive the right to invoke responsibility, it may acquiesce, by reason of its conduct, in the lapse of a claim. Such conduct may include an unreasonable delay between the time when the facts grounding its claim occurred, or the time when they came to its knowledge, and the time of presentation of the claim.

7.  At the time the case was first lodged with the former Commission, that is to say, in 1994, neither the Convention nor the Rules of Court established an obligation to present a just-satisfaction claim. Moreover, international law in general did not at that time, and still does not today, set a specific time-limit for just-satisfaction claims. The relevant precedent in international law is Nauru v. Australia, where two conclusions were reached: firstly, that the passage of time does have a bearing on the question of the admissibility of inter-State just satisfaction claims; and secondly, that a delay of twenty‑one years between the time when the applicant is in a position to present the compensation claim and the time of presentation of the claim does not make the claim inadmissible[9]. But it is doubtful whether Nauru applies to a delay in judicial proceedings that are already pending[10]. It can also legitimately be argued that Nauru does not apply in the case of claims based on situations of continuing violations like enforced disappearances and the continuing violations of the Convention rights of the Karpas residents[11]. Even if Nauru were applicable to the present case, the present claim would be admissible. In Nauru, the relevant period of time was twenty-one years, whereas in Cyprus v. Turkey the period is much shorter. In Nauru, twenty-one years elapsed between the time when the applicant was in a position to present the compensation claim (1968) and the time of formal presentation of the claim (1989)[12]. In Cyprus v. Turkey, there were nine years between the Court’s judgment in 2001 and the presentation of the just-satisfaction claim regarding the missing persons (2010) and only six years between the date of the judgment in 2001 and the date of the announcement that that claim would be submitted (2007)[13]. With regard to the Karpas residents, the period of time that elapsed between the Grand Chamber’s judgment of 2001 and the application of 21 June 2012 was eleven years, but the situation had already been brought to the attention of the Court two years before[14], giving a total delay of nine years[15].

8.  What is more, there is a plausible reason for the time it took the Cypriot Government to come forward with the present compensation claim, and that reason is, to put it plainly, the Turkish Government’s unwillingness to respond to the Committee of Ministers’ efforts to resolve the issue. The impasse in the Committee of Ministers is obvious in view of the position taken by the respondent State in recent years, especially but not exclusively after the Demopoulos and Others decision[16]. The claimant State waited six years for the Committee of Ministers to fulfil its task, which it failed to do. After realising the situation, the claimant State turned to the Court. The claimant State cannot be criticised for having relied on the system of implementation of the Convention as it should have worked but did not.

9.  The respondent State argued that allowing nine years to elapse before submitting a just-satisfaction claim was excessive, but at the same time maintained that new exhumations called for new applications by the relatives of the persons acknowledged to be dead. The missing-persons issue, in their view, should evolve into one concerning dead persons, with new investigations being carried out into the circumstances of the deaths[17]. This line of argumentation is contradictory: on the one hand, the Turkish Government criticise the claim for its belatedness, but on the other hand they argue that new claims should be presented in the future on the basis of the same facts. Allegans contraria non est audiendus[18]. It is not the claimant State that is late in claiming compensation and asking for the cessation of the ongoing human rights violations. It is the respondent State that is late in complying fully with the Grand Chamber judgment of 2001 and repairing the human rights violations established therein. Turkey has flouted the Grand Chamber’s judgment for thirteen years and this conduct cannot be condoned. Were the Court to condone it, there would be no rule of law in Europe, and the Court’s authority would be deprived of any practical meaning, in this instance for the families of those who disappeared and for those Greek Cypriots of the Karpas region whose rights under Articles 3, 8, 9, 10 and 13 have been violated. The process of supervision of the execution of the Grand Chamber’s judgment by the Committee of Ministers was thwarted by various means and proved inefficient. The Court cannot add denial of justice to the Committee of Ministers’ impotence.

10.  The respondent State also argued, without much conviction, that the right to compensation had been waived, if not explicitly then at least tacitly, in view of the inertia of the victims and the claimant State[19]. But this line of argument is to no avail. The claimant State has relentlessly sought year after year – hitherto without success – to secure redress for the human rights violations resulting from the invasion of Cyprus in various international fora, including the Committee of Ministers, and never expressed an intention to abandon that quest. Moreover, the Cypriot Government could not waive the rights of the individual victims they represent without the latter’s consent. And neither the victims themselves nor their families have ever expressed their acceptance of the failure to afford redress for the human rights violations they suffered for so long.

11.  Finally, there are no alternative domestic remedies for the claims in this case. Demopoulos and Others does not apply to this case, since it refers only to compensation claims under Article 1 of Protocol No. 1 in individual cases[20] and the present case does not refer to such claims. Moreover, it has to be reiterated that the rule of exhaustion of domestic remedies is not applicable to just-satisfaction claims at all[21].

The punitive nature of just satisfaction under the Convention

12.  According to the claimant State, just satisfaction should be provided to the lawful heirs of 1,456 missing persons[22] and to all the Greek Cypriots living in the Karpas region between 1974 and the date of the Grand Chamber judgment on the merits in May 2001[23]. The respondent State disputed these figures as merely “hypothetical”, maintaining that the number of missing persons may have varied over time, some of them might have left no lawful heirs and it was simply impossible to identify all the residents of the Karpas region since 1974. The Grand Chamber found that it was not necessary to establish the exact number of individual victims of human rights violations, and fixed two lump sums for the benefit of each of these groups of persons, with the obligation for the claimant State to distribute the monetary amounts to the victims or their lawful heirs. In fact, the number of missing persons has decreased in view of the exhumations carried out in recent years, and the victims in the Karpas region are neither identified nor identifiable solely on the basis of the evidence in the file. The Court did not even require, as the claimant State had proposed, that the number of Karpas residents be agreed between the parties or, in the absence of agreement, established by the President of the Court “on the basis of written evidence and submissions as to the number and location of residents and their heirs”. Furthermore, the Court did not establish any criteria, practical arrangements or rates governing the distribution of the compensation among the victims or their lawful heirs according to their individually differing circumstances (for example, wives, mothers, children), and most importantly it did not impose any condition regarding the devolution of the compensation in cases where the victims and their lawful heirs are not found. In this eventuality, the claimant State will be the final beneficiary of the amounts paid by the respondent State.

13.  The punitive nature of this compensation is flagrant[24]. In spite of the fact that the identity of the victims of the respondent State’s actions and omissions and the ensuing massive and gross human rights violations committed in the Karpas enclave could not be established, that the missing-persons claims would have been time-barred if lodged individually by their respective families[25] and that there can be no certainty that the indemnities obtained will devolve on the individuals concerned, the Court punished the respondent State for its unlawful actions and omissions and their harmful consequences. There is nothing new about this procedure. In fact, the practice of the Court shows that punitive damages have been applied in seven types of cases[26]. Firstly, the Court has ordered compensation without any claim for just satisfaction being lodged by the applicant at all. On the basis of the “absolute character” of the violated right[27], the “particularly serious character of the violations”[28], the “gravity of the violations”[29], or the “fundamental importance of that right”[30], the Court has shown itself willing to order compensation for violations of Articles 3 and 5 without any claim being made for specific damages. In other cases the applicant asks the Court to be compensated but does not specify the amount, and the Court orders what it finds to be fair in the particular case[31]. There are also cases where the applicant makes a claim for just satisfaction specifying a particular amount for non-pecuniary damage, but where the Court awards a higher amount[32]. When the Court awards compensation in an amount higher than the alleged damage or even independently of any allegation of damage, the nature of the just satisfaction is no longer compensatory but punitive. The inherent purpose of that remedy is not to place the injured party in the position in which he or she would have been had the violation found not taken place, since the injured party does not even claim to have sustained any damage or claims to have suffered lesser damage. The fundamental purpose of that remedy is hence to punish the wrongdoing State and prevent a repetition of the same pattern of wrongful action or omission by the respondent State and other Contracting Parties to the Convention. Secondly, the Court has in some cases established a “symbolic” or “token indemnity”[33], with the obvious purpose of blaming and shaming the respondent State, thus making the punishment an example for other States. Thirdly, the Court has also awarded just satisfaction in cases where the applicant complained about the domestic law without indicating any personal specific damage other than the distress caused by the existence of the law itself[34]. It is clear that the just satisfaction award is then an exemplary punishment of the respondent State for having legislated in a way incompatible with the Convention. Fourthly, the Court has ordered just-satisfaction for a “potential violation” of the Convention[35]. Here again the purpose of just satisfaction is to censure and punish the respondent State’s conduct rather than to compensate for damage which has not yet occurred. Fifthly, the Court has even not excluded the possibility that the applicant suffered, as a result of the “potential effects of the violation found”, a loss of real opportunities of which account must be taken, “notwithstanding the fact that the prospects of realisation would have been questionable”[36]. In these particular cases, just satisfaction does not even remedy a virtual harm done to the applicant, since it is doubtful that it would ever materialise. It is the fault-based conduct of the respondent State that the Court wants to punish. Sixthly, the Court sometimes even awards compensation in spite of the lack of supporting documents and contradictions in the statements made by the applicants regarding the losses claimed[37]. When no evidence of the alleged damage is produced, the award of damages lies entirely at the discretion of the Court. In these circumstances of total lack of evidence and discretionary award of damages, just satisfaction has an inherent element of punishment, since it does not remedy a proven damage, which remains speculative, but instead punishes the respondent State’s wrongful conduct. Seventhly, in cases of general interest, the Court determines just satisfaction taking into account its exemplary effect[38].

14.  Thus, the existence of punitive or exemplary damages under the Convention is a fact in the Court’s practice. Since just satisfaction is only to be awarded when the domestic legal order has not provided full reparation, Article 41 excludes any compensation exceeding full reparation, but “full” reparation can only be achieved if and when the need for prevention and punishment in the specific circumstances of the case has also been satisfied. Only then is satisfaction “just”. Compensation for quantifiable losses may not be sufficient and the obligation of full reparation may include punitive damages that go beyond remedying the pecuniary and non-pecuniary damage caused to identified persons.

15.  Punitive damages are also acknowledged in international practice and law, such as in diplomatic practice[39], arbitration proceedings[40], international labour practice[41], and particularly in private international law, European Union law and international human rights law. In the field of private international law, neither the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958, with 149 Contracting Parties, nor the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 1 February 1971, with only 5 Contracting Parties, makes reference to punitive damages as a ground for refusing recognition and enforcement of an arbitral award or a foreign judgment. On the other hand, Article 29 of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air of 28 May 1999, with 105 Contracting Parties, provides that punitive damages shall not be recoverable. Article 11 § 1 of the Hague Convention on Choice of Court Agreements of 30 June 2005 provides that recognition or enforcement of a judgment may be refused if, and to the extent that, it awards punitive damages, but this Convention has been signed only by the European Union, the United States of America and Mexico, and has not come into force yet. Moreover, this provision is not linked to the ordre public clause contained in Article 9 (e), which prohibits the use of this clause to deny recognition of punitive damages awards. Article 74 of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, with 80 Contracting Parties, also provides that damages for breach of contract by one party may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract[42].

16.  Within the European Union, there has been an acknowledgment of the extra‑compensatory purposes of civil liability and consequently of the legitimacy of punitive damages when they are not excessive. Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non‑contractual obligations (Rome II) states that “[t]he application of a provision of the law designated by this Regulation which would have the effect of causing non‑compensatory exemplary or punitive damages of an excessive nature to be awarded may, depending on the circumstances of the case and the legal order of the Member State of the court seised, be regarded as being contrary to the public policy (ordre public) of the forum”. Yet it is relevant to note that the provision of Article 24 of the proposal for the Rome II Regulation (COM (2003) 427) stated that “application of a provision of the law designated by this Regulation which has the effect of causing non‑compensatory damages, such as exemplary or punitive damages, to be awarded shall be contrary to Community public policy”. With the new wording, proportionate punitive damages were incorporated into European Union law[43]. In addition, neither Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters nor Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility refers to punitive damages as a ground for refusing recognition and enforcement of a foreign judgment.

17.  In the Council of Europe, the Committee of Ministers noted that “the setting up of a merely compensatory or acceleratory remedy may not suffice to ensure rapid and full compliance with obligations under the Convention, and ... further avenues must be explored, e.g. through the combined pressure of various domestic remedies (punitive damages, default interest, adequate possibility of seizure of state assets, etc.), provided that their accessibility, sufficiency and effectiveness in practice are convincingly established”[44]. This clear stance in favour of punitive damages taken by the highest political body of the Council of Europe was not an isolated case[45]. In the Inter‑American human rights protection system opinions are still divided. While the Inter-American Commission expressed itself in favour of punitive damages or at least of a punitive aim to compensation, the Inter-American Court initially had a more reserved position[46]. More recently, in the Myrna Mack Chang case, the Inter-American Court came close to the Commission’s position by ordering the payment of aggravated damages based on the extreme seriousness of the respondent State agents’ conduct[47].

18.  Summing up, the Court has been at the forefront of an international trend, using just satisfaction to prevent further violations of human rights and punish wrongdoing governments. The acknowledgment of punitive or exemplary damages under the Convention is essential in at least three cases: (1) gross violations of human rights protected by the Convention or the additional Protocols, especially when there are multiple violations at the same time, repeated violations over a significant period of time or a single continuing violation over a significant period of time[48]; (2) prolonged, deliberate non-compliance with a judgment of the Court delivered with regard to the recalcitrant Contracting Party[49]; and (3) the severe curtailment, or threat thereof, of the applicant’s human rights with the purpose of avoiding, impairing or restricting his or her access to the Court as well as the Court’s access to the applicant[50]. In all these three cases, the underlying premise for punitive damages is not only causality between the wrongful conduct and the harm, but also intention or recklessness (gross negligence) by the wrongdoing State, that is to say, by its organs and agents. Hence, the Court’s legal and moral authority and the practical solvency of the entire European human rights protection system are particularly at stake here. The gravity of such breaches engages the interests of all Contracting Parties to the Convention, the Council of Europe as an institution and Europe as a whole. The principle of State sovereignty cannot, in the light of Article 26 of the Vienna Convention on the Law of Treaties, be invoked to justify such gross wrongdoing[51]. Whereas between sovereign nations the question of the power to impose penalties is political rather than legal in nature, the conclusion is different between nations bound by a human rights treaty, such as the Convention, which confers rights on natural and legal persons and imposes negative and positive obligations on the Contracting Parties enforceable by an international court through binding judgments. Within this framework, just satisfaction by means of punitive damages does not entail a sanction applied by one State against another, but instead corresponds to an authoritative and indispensable response by an international court to the wrongdoing State. The Court speaks then on behalf of all the Contracting Parties, acting as the ultimate defender of a Europe rooted in the rule of law and faithful to human rights. To overlook the need for such a response would in turn encourage States, especially the most powerful ones, to assume that human rights violations can easily be made good by mere pecuniary compensation. Moreover, in determining punitive damages the Court acts within the boundaries established by the principle of proportionality and with full regard to such factors as the objective gravity of the wrongful conduct, the degree of reprehensibility of the intention or recklessness of the wrongdoer, the extent of the harm caused to the applicant and third parties, the consequential gains obtained by the wrongdoer and third parties and the probability of non-enforcement of the breached right.

19.  Therefore, punitive damages are an appropriate and necessary instrument for fulfilling the Court’s mission to uphold human rights in Europe and ensuring the observance of the engagements undertaken by the Contracting Parties in the Convention and the Protocols thereto (Article 19 of the Convention). This conclusion applies with even greater force in the case at hand, where the respondent State not only committed a multitude of gross human rights violations over a significant period of time in northern Cyprus, and did not investigate the most significant of these violations adequately and in a timely manner, but also deliberately failed year after year to comply with the Grand Chamber’s judgment on the merits delivered a long time ago with regard to these specific violations.

The Court’s power to deliver a declaratory judgment on the cessation of ongoing violations

20.  The claimant State, in a submission of 25 November 2011, requested the Court to issue a declaratory judgment on the cessation (it used the words “abstaining from”) of ongoing human rights violations after the Grand Chamber judgment of 2001 and on the irrelevance of the Demopoulos and Others decision for the discharge of the obligation arising under Article 46[52]. The claimant State’s request thus has a double meaning: while cessation of the wrongful act relates to future performance of an international obligation deriving from the judgment on the merits in Cyprus v. Turkey, the interpretation of the Demopoulos and Others decision relates to the fulfilment of that same legal obligation in the past. The Court found that it had competence to address and grant this request, but it did not find it necessary to give reasons as to why it was competent. There are very compelling reasons to justify this competence, both in principle and in the particular circumstances of this case[53].

21.  As a matter of principle, any State entitled to invoke responsibility may claim from the responsible State the cessation of the internationally wrongful act[54]. Thus, the claimant State may request, under Article 41 of the Convention, a declaratory judgment stating that an ongoing violation must cease, especially but not exclusively when the ongoing violation of human rights infringes judgments of the Court which are already res judicata. Just satisfaction is then provided by way of appropriate declaratory relief to clarify the effects of the Court’s judgments in the light of a continuing unlawful practice. The teleological interpretation of Article 41 of the Convention imposes such powers. The power to declare the cessation of an ongoing human rights violation is implied logically in the power to establish the existence of the human rights violation itself and to order compensation for it. The provision of compensation as a remedy for a human rights violation is not to be confused with the duty of States not to commit and to put an end to violations of the Convention. Were it otherwise, the European human rights protection system would be flawed, because States could commit violations with impunity so long as they provided compensation to the victims of the violations after having committed unlawful acts. As the Commission stated in a number of cases, “the State [cannot] escape from its obligations merely by paying compensation”[55]. Such an interpretation would fraudulently deprive the Convention of its effet utile.

22.  Moreover, the declaratory judgment is much needed in the particular circumstances of this case. The request deals with an ongoing infringement of the Grand Chamber judgment of 2001 until at least November 2011 and therefore lies within the remit of this Grand Chamber. The claimant State’s request is based on undisputed facts. It is not contested that the Council of Ministers of the “TRNC” was disposing of land and property belonging to Greek Cypriots until at least November 2011[56]. As a matter of fact, these ongoing violations did not come to an end by virtue of the enactment of “TRNC” Law 67/2005[57], since the unlawful sale and exploitation of Greek‑Cypriot property and homes in the occupied part of Cyprus, with the active encouragement of Turkey, continued after the entry into force of that law, creating a situation which will be difficult, if not impossible, to remedy ex post facto. Furthermore, neither the Immovable Property Commission nor the courts in the “TRNC” have the power to put an end to this continuing unlawful practice[58]. Faced with this grave situation, the Committee of Ministers was hitherto unable to reach a common position. Indeed, it could not even obtain the information that it asked for several times on the ongoing misconduct of Turkey in northern Cyprus. To aggravate the situation, the Committee of Ministers was paralysed by a serious deadlock regarding the meaning and impact of the Demopoulos and Others decision with regard to the issue of the possessions of displaced Greek Cypriots in northern Cyprus and other additional claims. The Directorate General of Human Rights and Legal Affairs declared in September 2010 as follows: “It flows from the findings of the Grand Chamber in its Demopoulos and Others decision that no further measure is required for the execution of the cases under consideration, concerning first, the home and other possessions of the displaced Greek Cypriots, and second the existence of an effective remedy in this respect.”[59] This position was not followed by the Committee of Ministers, since the implementation of the Court’s judgment of 2001 on the merits was, and still is, very far from complete in this regard. Worse still, Turkey withdrew all cooperation from the process of supervision by the Committee of Ministers of the Grand Chamber judgment of 2001 “concerning all Cyprus related cases” until the Committee ceased to supervise the execution of the Court’s findings relating to violations of property and homes[60]. Thus, the Turkish Government are using the Demopoulos and Others decision to block the execution in totum of the Cyprus v. Turkey Grand Chamber judgment of 2001, including with regard to claims not related to violations of property and homes.

23.  The Court had to intervene for the sake of legal certainty and to safeguard its own authority. The Court, and only the Court, has the last word about the interpretation of its Demopoulos and Others decision, hence settling this dispute in a manner that lessens the likelihood of future conflicts between the parties while upholding the rule of law and ensuring full execution of the judgment on the merits in Cyprus v. Turkey. The Court’s answer to the claimant State’s request is crystal clear: the Court did not decide in Demopoulos and Others that Turkey’s obligations under Article 46 to execute the Grand Chamber judgment of 2001 had been fulfilled, nor did the Court hold that the ongoing violations found by the Grand Chamber in its judgment on the merits had come to an end by virtue of the enactment of Law 67/2005, and this for the simple, but obvious, reason that Demopoulos and Others concerned only domestic remedies in respect of violations of Article 1 of Protocol No. 1 in individual cases. To put it unambiguously, the Demopoulos and Others decision did not interfere with the claimant State’s right to full implementation of the Grand Chamber judgment of 2001, including the immediate cessation of the continuing unlawful disposal (including sale, lease, use or any other means of exploitation) of the land and property of Greek Cypriots in northern Cyprus by the “TRNC” authorities with the complicity of the Turkish State. This is not a mere statement on the interpretation of a previous judgment of the Court. The Court’s intention goes much further. This is also an acknowledgment of the existence of a situation of non-implementation of the Grand Chamber’s judgment of 2001, and therefore of a violation by the respondent State of its obligations under Article 46 of the Convention, to which the Court seeks to put an end[61].

Conclusion

24.  After all, there is punishment for unjust war and its tragic consequences in Europe. That punishment can be applied in inter-State cases before the Court, which is competent to determine punitive damages in particularly serious cases of human rights violations. That was the case here. The respondent State is responsible for the protracted search for the missing persons and the prolonged suffering and humiliation of Greek Cypriots ever since the invasion of northern Cyprus, and it has been deaf to the Committee of Ministers’ repeated calls for full implementation of the Court’s judgment concerning those violations. As Blackstone once put it, punitive damages are most needed in those cases where creators of grave nuisance do not remove that nuisance after the initial verdict against them[62].

PARTLY CONCURRING OPINION OF JUDGES TULKENS, VAJIĆ, RAIMONDI AND BIANKU, JOINED BY JUDGE KARAKAŞ

(Translation)

1.  We voted with the majority and are thus in agreement with all points of the operative provisions of this important judgment[63].

2.  The reason we feel compelled to express a separate opinion is solely due to one specific aspect, namely the remarks – which we cannot endorse – contained in the final sentence of paragraph 63 of the judgment. This paragraph concerns the request made by the Cypriot Government on 25 November 2011 in the course of the proceedings which, although entitled “Application for just satisfaction (Article 41)”, actually relates to the procedure for execution of the principal judgment by the Committee of Ministers of the Council of Europe and requests the Court to take certain steps in order to facilitate the execution of that judgment (see paragraph 8 of the present judgment).

3.  In paragraph 63 of the judgment the Court outlines some principles concerning the execution of its judgments to which we fully subscribe. It states in particular that “the respondent Government is, in any event, formally bound by the relevant terms of the main judgment” and, accordingly, that “it is not necessary to examine the question whether [the Court] has the competence under the Convention to make a ‘declaratory judgment’ in the manner requested by the applicant Government...”. It “observe[s] in this connection that the Court has held that there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property, as well as any compensation for the interference with their property rights (section III, point 4 of the operative provisions of the principal judgment)”. The Court accordingly concludes that “[i]t ... falls to the Committee of Ministers to ensure that this conclusion, which is binding in accordance with the Convention, and which has not yet been complied with, is given full effect by the respondent Government”.

4.  The Court’s subsequent statement, according to which “[s]uch compliance could not ... be consistent with any possible permission, participation, acquiescence or other form of complicity in any unlawful sale or exploitation of Greek-Cypriot homes and property in the northern part of Cyprus”, and which basically does no more than reiterate the dictum of the principal judgment on this issue, does not give rise to any particular difficulties, although this repetition might be said to be entirely superfluous in the light of the purpose of the Article 41 judgment.