The European Court of Human Rights (“ECtHR”) recently handed down judgment in Cyprus v Turkey. This case, the first to award damages to an applicant government in an inter-State case, may mark a development towards the ECtHR’s more extensive use of damages as a punitive device against States. 

This judgment represents the culmination of over 10 years of legal developments. In 2001, the ECtHR found various violations of the European Convention on Human Rights (“ECHR”) by Turkey, arising out of Turkish military operations in northern Cyprus in the 1970s, the continuing division of the territory of Cyprus, and the activities of the “Turkish Republic of Northern Cyprus.” Under Article 41 ECHR, a party is entitled to “just satisfaction” following a finding of violation. However the ECtHR held that the issue of just satisfaction was not ready for decision. It was not until March 2010 that the Cypriot government submitted to the Court its claims for just satisfaction.

The first question for the Court to consider was whether it was too late for Cyprus to make such a claim. It noted that general international law does, in principle, recognise the obligation on applicant governments in inter-State disputes to act without undue delay. However, it pointed out that, as the delay in this case occurred (a) due to the Court holding that the issue was not ready to be decided; (b) following judgment on the merits, meaning that Turkey would anticipate developments; (c) without the Cypriot government renouncing or waiving its right to just satisfaction, the claim could still validly be made over a decade later.

The second issue was whether just satisfaction could be claimed in an inter-State case. Up until this point, damages had only ever been awarded to individual complainants whose rights had been violated by a State. In the only previous case to consider this issue, Ireland v the United Kingdom, the applicant government had stated that it did not invite the Court to consider just satisfaction.

In its judgment, the Court pointed out that the general logic of the just satisfaction rule was directly derived from principles of public international law on State liability, one of which was that the breach of an engagement involves an obligation to make reparation in an adequate form. It therefore considered that Article 41 did apply to inter-State cases, but noted that whether granting just satisfaction was justified “has to be assessed and decided by the Court on a case-by-case basis.” Relevant factors included the type of complaint made by the applicant Government, whether the victims of violations could be identified, and the main purpose of bringing the proceedings.

The Court then imposed a caveat. According to the very nature of the ECHR, it was the individual, not the State, who was primarily injured by a violation of Convention rights. Therefore just satisfaction should always be awarded for the benefit of individual victims. In the present case, the claims submitted on behalf of 1456 missing persons and enclaved Greek Cypriots were therefore found to merit an award of just satisfaction. This was assessed at €30 million and €60 million respectively.

As noted by the concurring judges, “the present judgment heralds a new era in the enforcement of human rights.” The Court has made clear that States will be held accountable in damages for invasions, wars, and other large-scale violations of the rights of citizens of other States. An interesting point raised by Judges Pinto de Albuquerque and Vučinić was that the just satisfaction awarded in this case, without reference to practicalities such as division of the award between individuals, was clearly intended to be punitive, rather than compensatory. One wonders whether this mechanism could be used more widely in future to provide the Court with greater weaponry when States fail to implement its judgments. It is not hard to imagine, for instance, UK prisoners launching fresh claims against the State for its continued non-implementation of the judgment in Hirst v UK, where a blanket ban on prisoner voting was deemed to violate the Convention. If such a claim were to succeed, would the Court impose a more punitive measure of just satisfaction? Such a development would lead to an interesting change in dynamic between domestic courts and the ECtHR.