The European Court of Human Rights has spoken … again. Does Turkey listen?

This guest post was written by Dr Elena Katselli, Senior Lecturer in Law at Newcastle Law School

Thirteen years have elapsed since the European Court of Human Rights’ (ECtHR) judgment in Cyprus v Turkey in which the Court found Turkey responsible for 14 violations of the European Convention on Human Rights (ECHR) and its Protocols. The violations related to 1,485 Greek Cypriots who disappeared during the Turkish military invasion and occupation of Cyprus in 1974; the living conditions of enclaved Greek Cypriots living in the occupied area of Karpas since thereafter; and displacement.[1]

More specifically, in its merits judgment the Court established Turkey’s continuing and severe failure to carry out an effective investigation into the circumstances of disappearance of the persons concerned and who were at the crucial time under the control of its agents. According to the Court this was a violation of the right to life and was tantamount to inhuman treatment in violation of articles 2 and 3 ECHR. [2] The Court also found that the unaccounted detention of individuals in the power and control of Turkish forces and who disappeared thereafter was a continuing violation of the right to liberty under article 5 ECHR.[3]

The Court also found a number of violations relating to the enclaved Greek Cypriots living in Karpas. In particular, the Court held that the restrictions imposed upon this group of individuals on freedom of movement impeded their freedom of religion and their ability to exercise their religious beliefs as guaranteed in article 9 ECHR. At the same time, the ‘wide-ranging censorship’ of school books was a violation of freedom of expression and to receive and impart information in violation of article 10 ECHR.[4]

The Court also found violations of their right to peaceful enjoyment of possessions through preventing the return of those enclaved who left the occupied areas and through denial of inheritance rights.[5] Furthermore, the Court established that Turkey was responsible for interferences with the right to education and to family life through the unavailability of secondary education in Greek and by imposing restrictions on children studying in the free areas to return home.[6] The Court also found that the monitoring and surveillance these people had to endure amounted to a violation of the right to private and family life which had no legal justification.[7] Having concluded that the violations were severe and degrading as part of a discriminatory policy in violation of article 3 ECHR, the Court finally held that Turkey provided no effective remedies and as a result was in violation of article 13 ECHR.[8]

With respect to the displaced the Court found a continuing violation of article 1 Protocol 1 relating to the peaceful enjoyment of possession through preventing legitimate Greek Cypriot owners from having access to, control and use of their property.[9]

On 12 May 2014, thirteen years after the judgment in the merits, the Court considered Cyprus’ claim for just satisfaction for the violations relating to the missing persons and the enclaved.[10] To this effect the Court decided that Turkey should pay 90 million Euros in total, and in particular 30 million Euros to the relatives of the missing persons and 60 million Euros to the enclaved.[11] The award was based on article 41 ECHR according to which ‘the Court shall, if necessary, afford just satisfaction to the injured party’ in cases of violations of the Convention or its Protocols.

While the Cypriot government reserved its rights on just satisfaction in relation to the displaced, it sought a declaration from the Court that Turkey must not allow the unlawful sale and exploitation of the home and property of the displaced and that this obligation was not discharged by the Court’s findings in Demopoulos.[12]

The latest judgment of the Court on just satisfaction is significant in many respects. Not only this is the first time that the Court awards moral damages in an inter-state complaint before it, but importantly the Court emphasised that the compensation was to be awarded by the applicant state directly to the individual victims of the violations.[13] Notably, while the Court did not find it necessary to make a declaration as requested on Turkey’s continuing responsibility concerning Greek Cypriot property and home, it stressed that Turkey continued to have a duty to abide by the 2001 judgment and it called the Committee of Ministers to ensure its compliance.[14]

The latest judgment demonstrates that the Court’s pronouncements do not merely have a symbolic role. The award of such an unprecedented satisfaction for moral damages illustrates that a finding of violation is not always sufficient to provide effective remedy for the harm caused.[15] Rather, through the award of just satisfaction the Court aims to secure cessation of the unlawful state of affairs as well as to ensure non-repetition and to offer some kind of justice to the direct victims for the wrongdoings they have had to endure. As previously stressed in Varnava and others and referred to again here, the Court’s 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.[16]

While the award is not likely to change things by bringing for instance those who disappeared back, it provides a form of consolation and moral satisfaction to the victims of violations. This is particularly the case in relation to the relatives of missing persons who are still waiting for news about the whereabouts of their loved ones and who are desperate to have some closure, even by way of mourning. For such relatives, and especially for the children of those who disappeared, the Court’s judgment is a positive development and some indication that they have not been abandoned and left ‘at God’s mercy’.[17] It further provides some hope that they will now be able to reach the truth of what happened to their loved ones and that the violations found by the Court to have been established will cease. Indeed, as it is clear in so many instances of gross human rights violations, human suffering cannot be measured in material terms. Victims are not interested in compensation but rather in justice by way of ensuring that such violations do not occur again, that perpetrators are punished, and that violations cease.

While the Cypriot government welcomed the judgment and called Turkey to fully comply with its international obligations,[18] there is broad public disbelief as to whether Turkey will abide by its international legal commitments and execute both judgments of the Court as it is obliged to do under article 46 ECHR. This is so despite the fact that ‘Respect of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, in particular, of the European Court of Human Rights‘ judgments, is a crucial element of the Council of Europe’s system for the protection of human rights, rule of law and democracy and, hence, for democratic stability and European unification.’[19]

Reference is made in this respect to the continuing impediments placed by Turkey in relation to the efforts for investigation, exhumation and identification by refusing to provide vital information and to allow search in specific sites. [20] Turkey’s reaction to the latest judgment is also telling in this respect, with the Turkish Foreign Minister stating that the judgment would ‘neither be binding nor carry any value’ for Ankara and that Turkey is ‘not thinking of paying this amount to a country that we do not recognize’.[21]

In addition to the reservations as to whether Turkey is going to genuinely and effectively comply with the Court’s judgments, as it continues to occupy the northern part of Cyprus through armed force, Turkey aims to concretise the unlawful status quo through the Immovable Property Commission and through a political settlement intended to keep human rights violations beyond the reach of the European Court of Human Rights.[22] Despite Turkey’s public statements that it does not consider the judgments of the Court binding and that it will not abide by them, it knows all too well that refusal to do so may have negative consequences on its European integration. This is despite the fact that Turkey has managed to go ‘unpunished’ for its aggression against Cyprus and for the gross human rights violations for almost four decades. This explains why Turkey has a clear interest to settle the dispute in a manner that secures its acquisitions as a result of the use of force, whilst at the same time ensuring that any human rights issues will be determined domestically rather than at a regional/international level as the Annan plan would enable it to do.

In circumstances such as these, where gross human rights violations persist, the Court is called upon to ensure compliance with the rule of law and principles of international justice. Guided by legal principles rather than practical or factual realities the Court is called to safeguard in an effective manner human rights in Europe. As significantly pointed out in the latest judgment, ‘The Court has spoken: it remains for it to be heard.’[23] To this effect, the Committee of Ministers must take effective action to ensure Turkey’s compliance not only in relation to the award of satisfaction, but importantly in relation to the need for immediate cessation of the violations that it continues up to the present day to commit.

 

 
 

[1] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [3]; Pending Cases: Current State of Execution, Council of Europe, http://www.coe.int/t/dghl/monitoring/execution/reports/pendingcases_EN.asp?CaseTitleOrNumber=25781%2F94&StateCode=TUR&SectionCode= (accessed 18 June 2014).

[2] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [132], [134], [136] and [157].

[3] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [147].

[4] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [252].

[5] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [269] and [270].

[6] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [292] and [293].

[7] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [294] and [295].

[8] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [310].

[9] Cyprus v Turkey, Appl No. 25781/94, Judgment, 10 May 2001, [189].

[10] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, [6].

[11] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014.

[12] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, [61]. According to the findings of the Court in the admissibility decision in Demopoulos, the Immovable Property Commission established by Turkey constitutes an effective domestic remedy which needs to be exhausted before resort to the ECtHR. Demopoulos and others v Turkey (2010); 50 EHRR SE14

[13] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, [41] and [46].

[14] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, [63].

[15] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, Concurring Opinion of Judge PINTO DE ALBUQUERQUE joined by Judge VUČINIĆ.

[16] Varnava and others v Turkey, Appl Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, Judgment, 18 September 2009, [224] cited in Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, [56].

[17] Phone testimony by one of the victims whose husband disappeared during the Turkish military operations in 1974.

[18]Γραπτή Δήλωση του Κυβερνητικού Εκπροσώπου κ. Νίκου Χριστοδουλίδη για την απόφαση του ΕΔΑΔ, 13 May 2014, http://www.mfa.gov.cy/mfa/mfa2006.nsf/All/D2660741D7BB3588C2257CD7003213F0?OpenDocument

[19] Execution of judgments of the European Court of Human Rights, http://www.coe.int/t/dghl/monitoring/execution/default_en.asp

[20]Alsosee ‘Ανησυχεί ο Χρ. Φωκαϊδης για την καθυστέρηση στην τραγωδία των αγνοουμένων¨Εκκρεμούν πολλές περιπτώσεις’, Η Σημερινή, 9 June 2014.

[21] Hurriyet Daily News, 13 May 2014 (online version) taken from Cyrpus Press & Information Office, Turkish Cypriot and Turkish Media Review 13/05/2014, http://www.moi.gov.cy/moi/pio/pio.nsf/All/FD17989D701529BAC2257CD700419C7A?OpenDocument (accessed 26 June 2014)

[22] See in this regard The Comprehensive Settlement of the Cyprus Problem, 31 March 2004, Annex VII, Letter to the President of the European Court of Human Rights.

[23] Cyprus v Turkey, Just Satisfaction,Appl No. 25781/94, Judgment, 12 May 2014, Joint Concurring Opinion of Judges ZUPANČIČ, GYULUMYAN, DAVID THÓR BJÖRGVINSSON, NICOLAOU, SAJÓ, LAZAROVA TRAJKOVSKA, POWER-FORDE, VUČINIĆ and PINTO DE ALBUQUERQUE, [21].

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