February 14, 2019
By Kanstantsin Dzehtsiarou (University of Liverpool)
On 31 January 2019, the European Court of Human Rights (ECtHR) delivered a judgment on just satisfaction in the inter-state case of Georgia v Russia (I). The ECtHR ordered the respondent state to pay 10 million euros to the applicant country. In turn, Georgia will have to distribute this amount among about 1500 victims of the violations identified by the Court in its main judgment. The Court is developing a very new line of case law by awarding non-pecuniary damage in inter-state cases. Until the judgment in Cyprus v Turkey, delivered in 2014, the Court has never awarded financial compensation in inter-state cases. It is beyond the scope of this short post to consider if the Court is doing the right thing by using just satisfaction in the inter-state cases. In this post I will just show some potentially problematic areas which the Court would have to address if this issue is considered again. There are a few pending inter-state cases and the question of compensation is very likely to resurface again.
The application in this case was brought to the Court by the Georgian authorities claiming that Russia forcibly removed over 4600 Georgian citizens from its territory between the end of September 2006 and the end of January 2007. Some of the victims were just forcibly removed from the territory of Russia; the others were arrested and subjected to inhuman and degrading treatment before being removed. In 2014, in its judgment the ECtHR found violations of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens), Article 5 (right to liberty and security), Article 3 (prohibition of inhuman or degrading treatment), Article 13 (right to an effective remedy) and Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation). The judgment on just satisfaction was postponed.
Compensation in individual cases
Just satisfaction is governed by Article 41 of the Convention, which states that if the Court finds that there has been a violation of the ECHR, and if the internal law of the Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. In the early cases of the Court, it analysed the situation and only awarded just satisfaction in some individual cases. More recently, the award of just satisfaction has become more or less automatic, with very little attention being given to the apparent requirements of Article 41. This raises a serious question about whether it is appropriate for the Court to do so. This is not to suggest that the payment of monetary compensation is unimportant; for many, access to the ECtHR may be their last chance of obtaining recognition of a rights violation and payment of appropriate compensation following a lack of success in the domestic legal system. Moreover, routine findings of violations and award of just satisfaction may create an extra incentive for the Contracting Party to initiate some fundamental reforms in order to avoid repeatedly being brought to Strasbourg. Since the Court has relatively few tools of implementation in its arsenal, just satisfaction in the form of monetary compensation may, in some cases, act as a sufficient incentive for implementation of the judgment and better compliance with the Convention.
One can assume that the Court’s ambition behind awarding monetary compensation in inter-state cases is also twofold. First, the Court offers a fair compensation to the victims and, second, the Court uses it as a precaution against further violations of the Convention. That said, inter-state applications present a more challenging way of bringing fairness to victims and preventing violations than individual ones. Even in individual cases just satisfaction is not an automatic feature of the Strasbourg system, it should be even less so in inter-state cases.
Challenging task of awarding compensation in inter-state cases
Inter-state applications often touch upon sensitive and painful aspects of the relations between Contracting Parties to the European Convention on Human Rights. These cases are often broadly covered in media and an adverse judgment can be vigorously criticised by the respondent state. In this context, the ECtHR has to be very careful in its judicial strategies. Awarding just satisfaction in inter-state cases was first tested in 2014 in the case of Cyprus v Turkey. The Court ordered Turkey to pay 90 million euros to Cyprus to be distributed among the victims of the conflict in Northern Cyprus. The Turkish authorities stated that they are not going to pay any monetary compensation in this case. Until now, this judgment is not yet enforced. It remains to be seen if Russia will be willing to pay monetary compensation the Georgian government. This will perhaps depend on the broader question of whether Russia remains in the Council of Europe. Irrespectively of how relations between Russia and the Council of Europe develop, it seems that Russia is not going to start paying any time soon.
The Court should perhaps take into account the risk of non-execution when developing a new strand of its case law but, of course, it should not be the only consideration for the Court. The raison d’être of the Court is to protect human rights and not to ensure that its judgments are executed in all cases. That said, it is not possible to protect human rights effectively if the judgments are habitually ignored. Apart of the risk of non-execution there are other challenges that the Court faces when awards monetary compensations in inter-state cases.
Blurring boundaries between inter-state and individual applications and unclear number of victims
A necessity to award just satisfaction personalises inter-state applications. It is not any longer about a situation in general; it is about a clearly identified sum of individual violations. The Court is required to establish the facts of human rights violation in each individual case then. There is no logical reason why the standard of proof should be any different in inter-state cases than in the cases of individual violations if the result is comparable, namely a compensation award. It seems that the Court has to establish a clear list of victims and the amount of compensation that each individual victim is offered. This, however, has not been done in this case and the concurring judges have pointed that out too.
In Georgia v Russia (I), the applicant state acted as a proxy on behalf of the victims of the violations. It means that the victims in inter-state cases have a privileged status before the Court as opposed to the victims in cases of individual application. The victims in inter-state cases do not need to submit their individual applications and their cases are automatically admissible. Moreover, those victims who made an effort and submitted their individual applications were excluded from the pool of potential beneficiaries of this inter-state complaint. At the same time, since the risk of non-execution of an inter-state judgment is higher they are also less likely to receive their monetary compensation any time soon.
Finally, it is not clear how the applicant state should distribute the money received from the Russian authorities. The judgment states that the respondent State is to pay the applicant Government, within three months, 10 million euros in respect of non‑pecuniary damage suffered by a group of at least 1,500 Georgian nationals. This statement creates a few potential difficulties: first, what if 10 million is not enough or too much? The judgment does not specify how this problem can be rectified. Second, it is not entirely clear how the Committee of Ministers will supervise execution of this judgment. What if there are complaints that the Georgian authorities are not distributing this monetary compensation fairly or equally? Since the Court did not include the list of victims, it will be for the Georgian government to determine the exact list of victims and the exact amount awarded to each individual victim. In a way, the Court transferred some of its competences to the applicant state. This strategy might result in irritation and criticism from the respondent state.
Effectiveness of the system
The Court is driven by the desire to compensate moral damage of the victims of mass human rights violation by awarding monetary just satisfaction in inter-state cases. The ECtHR also tries to send a message to the member states that mass violations will not be only condemned by the Court but also that some financial sanctions will follow. These objectives are appropriate and justifiable. However, the ECtHR is developing this line of case law in a politically sensitive area. If this practice is not accepted by the States, the result might be the opposite to what the Court is hoping for. The victims of the violations may not receive any compensation either because the respondent state may be unwilling to pay or the mechanism of distribution may prove to be ineffective. The state may also accuse the Court of political decision making because of a high number of approximations and uncertainties that such judgments inevitably contain. Such accusations might not be entirely accurate but they could be damaging for the Court’s reputation.
As I pointed out in the beginning of this post, by awarding compensation, the Court tries to achieve two aims – offer just satisfaction to the victims and prevent possible future violations. This blogpost mainly discussed the challenges of the former aim; however, it is unlikely that the Court would be able to achieve the latter aim too. Human rights violations in inter-state cases often come at the back of an interstate confrontation. In the heat of the moment, the stakes are high to the states involved and it is unlikely that a potential compensation awarded by the ECtHR will play a significant role in the decision-making of the authorities. In these cases, the added value of compensation to the declaratory judgment of the ECtHR is fairly low. In other words, if the threat of an adverse judgment was not enough, the threat of relatively low compensation is unlikely to prevent a violation.