CASE OF CYPRUS v. TURKEY

Application no. 25781/94 · Delivered 2014-05-12 · ECLI:CE:ECHR:2014:0512JUD002578194 · Languages: EN · EN · FR · SV

← Strasbourg↗ HUDOC original
Application no.
25781/94
Delivered
2014-05-12
Respondent State
TUR
Conclusion
Remainder inadmissible (Art. 35) Admissibility criteria;Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Convention articles
33, 35, 41, 46, 46-1, 46-2
Importance
Key case
Original
HUDOC ↗
PresidentJosep CasadevallJudgeFrançoise TulkensJudgeGuido RaimondiJudgeNina VajićJudgeMark VilligerJudgeCorneliu BîrsanJudgeBoštjan M. ZupančičJudgeAlvina GyulumyanJudgeDavíd Thór BjörgvinssonJudgeGeorge NicolaouJudgeAndrás SajóJudgeMirjana Lazarova TrajkovskaJudgeLedi BiankuJudgeAnn Power-FordeJudgeIşıl KarakaşJudgeNebojša VučinićJudgePaulo Pinto de AlbuquerqueRegistrarMichael O’Boyle
Summary
Preparing…

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

“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.”

THE LAW

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

I. THE APPLICANT GOVERNMENT’S CLAIMS FOR JUST SATISFACTION

A. Admissibility

(a) The parties’ submissions

(i) The Cypriot Government

(ii) The Turkish Government

(b) The Court’s assessment

“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.

...

(a) The parties’ submissions

(i) The Cypriot Government

(ii) The Turkish Government

(b) The Court’s assessment

“... [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)).

B. Just satisfaction claims of the Cypriot Government

(a) Claims concerning missing persons

(i) The Cypriot Government

(ii) The Turkish Government

(b) Claims concerning residents of the Karpas peninsula

(i) The Cypriot Government

“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

“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).

C. Default interest

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

“(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.”

FOR THESE REASONS, THE COURT

(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;

(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’Boyle Josep 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

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

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

The punitive nature of just satisfaction under the Convention

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

Conclusion

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

JUDGE KARAKAŞ

(Translation)

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

DISSENTING OPINION OF JUDGE KARAKAŞ

(Translation)

I am unable to agree with the majority concerning:

(a) the finding 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;

(b) the applicability of Article 41 in the present case as regards the missing persons;

(c) the applicability of Article 41 in the present case in so far as the enclaved Greek-Cypriot residents of the Karpas peninsula are concerned, and

(d) the sums awarded by way of just satisfaction. A. The time factor

The Grand Chamber judgment on the merits in Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001‑IV) was delivered on 10 May 2001. In the operative provisions of that judgment the Court held unanimously that “the issue of the possible application of Article 41 of the Convention is not ready for decision and adjourns consideration thereof”. The issue is raised only in the operative provisions; no reference is made to it in the body of the judgment, unlike in the case of Ireland v. the United Kingdom (18 January 1978, Series A no. 25), where the Court explained clearly why it had not applied Article 50 (in that case, the Irish Government had not sought compensation for any individual).

In all cases before it, the Court may reserve/adjourn the issue of just satisfaction if, and only if, a request to that effect has been made by the parties within the time allowed.

In the instant case the Cypriot Government did not lodge a claim for just satisfaction within the time-limit set down by Rule 60 § 1 of the Rules of Court in the 1998 version, which was in force at the relevant time:

“Any claim which the applicant Contracting Party or the applicant may wish to make for just satisfaction under Article 41 of the Convention shall, unless the President of the Chamber directs otherwise, be set out in the written observations on the merits or, if no such written observations are filed, in a special document filed no later than two months after the decision declaring the application admissible.”

According to this wording, any applicant, whether a State or a natural or legal person, had normally speaking to submit quantified claims within the time allowed for the submission of written observations on the merits. It is thus quite clear that, unless the President directed otherwise, those time‑limits were binding; moreover, this is the case in all successive versions of the Rules of Court. It follows that, in the present case, the only option remaining to the Cypriot Government, since they did not submit their claims together with their observations on the merits, was to submit them no later than two months after the decision declaring the application admissible.

In its letter of 29 November 1999 the Court did not require the applicant Government to submit any claim for just satisfaction “at this stage of the proceedings”. At no point in the proceedings did the Cypriot Government submit such a claim, either in their initial application or during the hearing of 20 September 2000.

Nothing, or virtually nothing, happened between 2001 and 2010, with the exception of the letter of intention sent to the Court on 31 August 2007.

On that date, that is, seven years later, the Cypriot Government suddenly sent a letter informing the Court of their intention to lodge a separate application for the purposes of applying Article 41. How should the Court have responded to this letter? In any event, the applicant Government decided to submit claims for just satisfaction on 11 March 2010, that is, almost three years after that letter, and in relation only to the missing persons. Subsequently, on 18 June 2012, at the invitation of the Court, the Cypriot Government extended their claims to include the enclaved Greek-Cypriot residents of the Karpas peninsula. Accordingly, this new version of the claim became “final” (see paragraph 30 of the judgment to this effect).

In the instant case, contrary to Rule 60 of the Rules of Court, which required claims for just satisfaction under Article 41 to be submitted without undue delay, the applicant Government remained silent and inactive for almost ten years.

It should be pointed out in this regard that, according to Rule 46 of the Rules of Court, just-satisfaction claims under Article 41 are the responsibility of the applicant State, and that the Court could certainly not have acted of its own motion to remedy the failings in this connection. The reasonable-time requirement applies both to individual applicants and to applicant States, and any failure to satisfy that requirement will fall foul of the limitation rule.

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), the Court articulated the following principle concerning the application of the six-month time-limit to continuing situations, especially in disappearance cases:

“165. Nonetheless, the Court considers that applications can be rejected as out of time in disappearance cases where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case.”

Similarly, the case-law of the International Court of Justice (ICJ) generally recognises the obligation for applicant States to act within a reasonable time. The leading judgment on this issue is the judgment of 26 June 1992 in the case of Certain Phosphate Lands in Nauru (Nauru v. Australia)[64].

In that case the government of the Republic of Nauru had filed an application in 1989 instituting proceedings against Australia in respect of a dispute over the rehabilitation of certain phosphate lands (mines and quarries) worked out before Nauruan independence, during the time of the Australian Mandate. In its application, Nauru alleged that Australia had failed in its trusteeship obligations under Article 76 of the United Nations Charter and the Trusteeship Agreement of 1 November 1947. Australia lodged a series of preliminary objections, one of which argued that the application had been submitted out of time. According to the Australian government, Nauru had achieved independence on 31 January 1968 and, as regards rehabilitation of the lands, had not formally “raised [its position] with Australia and the other former Administering Powers” until December 1988. The Australian government argued that the delay in making the claim was all the more prejudicial to Australia because most of the documentation relating to the Mandate and the Trusteeship could have been lost or dispersed in the interval, and because developments in the law during the interval rendered it more difficult to determine the legal obligations incumbent on the respondent State at the time of the alleged breaches of those obligations. Australia therefore contended that Nauru’s application was inadmissible on the ground that it had not been submitted within a reasonable time. The ICJ rejected this preliminary objection, but nevertheless 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.

The Nauru case was eventually concluded by a friendly settlement. The interest of this case lies, however, in the fact that the ICJ clearly recognised an obligation on the part of the applicant State to act within a reasonable time. In other words, although no specific time-limits are laid down in general international law, the international court concerned must assess the relevant circumstances in order to determine whether the passage of time has rendered the application inadmissible, taking all the relevant factors into account (including the rights and legitimate interests of the respondent State, especially where these are at risk of being damaged).

In the spirit of the Nauru judgment, and contrary to the opinion of the majority, the Cypriot Government provided no convincing reasons for the lengthy period of inactivity between the delivery of the judgment on the merits (2001) and the claim for just satisfaction (2010).

It further transpires that the reasonable-time requirement as applied by the Court in Varnava and Others was compatible with the general rule of public international law established by the ICJ in the Nauru judgment and should therefore in principle also be applied in relation to a separate application lodged under Article 41 in the context of an inter-State case such as the present one.

Accordingly, I believe that the time factor described above renders the Cypriot Government’s application inadmissible.

B. Applicability of Article 41 in the present case as regards the missing persons

Article 33 of the Convention provides that “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party”, it being understood that “any ... breach” refers to allegations concerning both the substantive and procedural provisions. That said, it should be stressed at the outset that when a State intends to lodge an inter-State application, the admissibility requirements are not the same as those for individual applications. Under Article 35 of the Convention, inter-State cases are not required to comply with the rule of exhaustion of domestic remedies or the six‑month rule. We are thus led to conclude that no confusion can be allowed between the procedure governing inter-State cases and that governing individual applications, as otherwise Article 33 of the Convention could easily be circumvented by States in order to assert individual claims for the purposes of Article 34 and disregard the express requirements of Article 35 §§ 2 to 4.

That being so, I would observe that inter-State cases before the Court can be divided into three categories.

The travaux préparatoires to the Convention and the general principles of public international law concerning diplomatic protection and reparation lead to the conclusion that the just-satisfaction rule enshrined in Article 41 is applicable, as a matter of principle, in inter-State cases brought under Article 33 of the Convention. In that regard I agree with the view of the majority (see paragraph 43 of the judgment).

Article 33 draws on the notion of diplomatic protection (see, for instance, the ICJ judgment in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) of 19 June 2012[65]), as recognised in public international law. The Court could therefore award just satisfaction in inter-State cases which, by their nature, are more akin to typical cases of diplomatic protection in public international law, in other words where the application was lodged in the place of and on behalf of certain identifiable individuals (see, for instance, Denmark v. Turkey, cited above).

In the light of these principles it is not possible, to my mind, to apply Article 41 in the present case and to award any satisfaction under that head.

As stressed in the Cyprus v. Turkey judgment of 10 May 2001, it was not until the hearing on admissibility of 20 September 2000 that the Cypriot Government stated that the number of missing Greek Cypriots was 1,485 (see paragraph 119 of the judgment on the merits). At that stage none of the victims was identifiable. However, the Court agreed to proceed on the assumption that those missing persons were still alive and found a continuing violation of Article 2 on account of Turkey’s failure to carry out an effective investigation designed to shed light on the fate of the missing Greek Cypriots.

I would draw attention to the general scope of this finding, which does not relate to individual Greek-Cypriot citizens but finds fault with an ongoing situation. The violations in question were not found in respect of individual victims, but with regard to a factual and legal situation.

It should be stressed that the sole beneficiary of Article 41 is “the injured party”. In the present case the term “party” indisputably refers to “the Contracting Party” which lodged the application, namely Cyprus. Any attempt to rely on the approach adopted in Diallo (cited above) – which is a good example of the exercise of diplomatic protection by the State – in order to justify an award of just satisfaction is therefore unfounded, and even in contradiction with the legal and factual reality of the present case.

Unlike the majority, I am of the view that the “doctrine of diplomatic protection” does not come into play in the present case. This case concerns only the presumed situation of a group of persons which was not identifiable at the time when the Court found the violations of the Convention.

Hence, even assuming that the application was not lodged out of time, the Cypriot Government could only claim an award of satisfaction with regard to the violation found in Part II, point 2 of the operative provisions of the principal judgment[66].

According to the principles of public international law on reparation for non-pecuniary damage in cases not concerning diplomatic protection, the violation found in the judgment on the merits should constitute sufficient just satisfaction, without it being necessary to award aggregate, not to say speculative, sums such as those claimed by the Cypriot Government in respect of “non-pecuniary damage” on behalf of a vague and unidentifiable number of persons purported to be still alive.

In my view, a group of persons of this kind cannot constitute an “injured party” for the purposes of Article 41 in an inter-State case. In the present case the injured party is indeed the applicant State and, according to the logic of the Convention, non-pecuniary damage must per se be individual.

Thus, all monetary claims in respect of non-pecuniary damage should be dismissed, given that in international law reparation under this head may take the form of recognition by a court of a violation of the right of one State by another State, provided that only the State’s moral or political interests have been infringed. That was the situation in the Corfu Channel Case, in which the ICJ held that “by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People’s Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction” (emphasis added)[67].

The same was true in the arbitration ruling of 30 April 1990 in the case concerning the Rainbow Warrior affair. The Arbitral Tribunal, having publicly made “four declarations of material breach of its obligations by France”, held that this “constitutes in the circumstances appropriate satisfaction for the legal and moral damage caused to New Zealand” (emphasis added)[68].

More recently, in the Case concerning the arrest warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), the ICJ held that “the findings ... reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo” (emphasis added)[69].

In international law, therefore, a judicial finding of violation constitutes a sufficient form of satisfaction. This is true also in the context of the review of lawfulness in inter-State cases before our Court.

In the context of the Convention system, for satisfaction to be awarded under Article 41, the “injured” party must always be the individual (see paragraph 46 of the judgment). Hence, even in an inter-State case, the compensation awarded to the applicant State must be aimed at redressing the damage suffered by a clearly defined person or persons.

In the instant case, awarding an aggregate sum to the applicant State for it to distribute, as it sees fit, to individuals whose existence and number were alleged only at the hearing would be contrary to the very spirit of Article 41.

In circumstances such as those which were the subject of the principal judgment, any approach which sits uneasily with the raison d’être of Articles 33, 34, 35 and 41 of the Convention will raise serious issues as regards the effectiveness not just of the implementation of the just-satisfaction remedy by an Article 41 judgment, but also of the execution by the States of such a judgment and the supervision of its execution by the Committee of Ministers.

The majority of the Grand Chamber decided to make an award to Greek Cypriots who are missing but presumed alive, on account of the suffering which the applicant State is now expressing on their behalf. Following this line of reasoning allow me therefore, as a working hypothesis, to consider these persons as individual applicants, on the understanding that they may not be granted more favourable treatment than any other applicant having undergone a comparable experience.

This hypothesis demonstrates that the majority has in fact indirectly granted monetary compensation to certain individuals to which the latter would not have been entitled on the basis of individual applications (see, to this effect, Varnava and Others, cited above, §§ 151-72), for which the requirements as to admissibility and the merits are most certainly not the same.

C. Applicability of Article 41 in the present case as regards the residents of the Karpas peninsula

It should also be noted that, starting with this case, the Court is henceforth supposed to accept the applicability of Article 41 in inter-State cases, by referring to diplomatic protection and relying on the possibility of identifying the victims of violations on the basis of the information emerging from the initial application. To that end the Court has stated that it will examine each complaint separately in order to determine whether or not to award just satisfaction (see paragraph 43 of the judgment).

However, the judgment does not explain anywhere on what factual basis the majority awarded sums to the enclaved Greek-Cypriot residents of the Karpas peninsula, who form a group defined in an abstract manner.

In this context the Cypriot Government stated that “[t]he 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”. Here we can see clearly the fundamental difference between the complaints concerning the missing persons and those concerning the Karpas residents. As regards the latter, the Cypriot Government wanted to try identifying and listing them ex post facto eleven years after the delivery of the judgment on the merits! One wonders how it can be that this did not pose the slightest problem for the majority, which did not comment on this request and awarded a grandiose lump sum without having any idea of the number of persons concerned.

I therefore fail to understand the legal logic behind the view of the majority set forth in paragraphs 43 to 46 of the judgment, in which it decides to apply Article 41 even to the abstract and general inter-State complaints.

Against such a background, any reference to the above-cited Diallo judgment remains irrelevant and unfounded, not to say misleading.

D. Some factual inaccuracies

Under this heading I will simply reiterate some of the facts and address a number of issues of a factual nature.

(1) What of the true number of missing persons (in view of all the acts complained of to date and re-examined by the Grand Chamber)? Application no. 8007/77 referred to approximately 2,000 missing Greek Cypriots. In their written submissions of 22 November 1994 in the course of the procedure on the merits, the applicant Government referred to 1,619 persons. Six years later, at the hearing of 20 September 2000, that number dropped to 1,485. Now, the Government’s final figure is 1,456. According to the statistics issued in February 2014 by the United Nations Committee on Missing Persons, 358 bodies – presumed to be those of missing Greek Cypriots – had been discovered in the meantime[70]. One might therefore have expected that the number of victims would no longer be 1,456. However, the first official list (as published in the Official Gazette of Cyprus) accompanying the just-satisfaction claim lodged in 2010 refers to 1,493 persons.

In view of the foregoing, can the majority claim to know the true number of missing persons? Is the majority convinced that the missing persons who have already been the subject of around eighty applications examined by the Court have not been counted a second time in the figures provided in the instant case? If the answer is in the negative, how does the majority envisage establishing the sum to be awarded in respect of non-pecuniary damage?

Updating this list was of vital importance in order to distinguish those persons who are still missing from those whose bodies have been discovered, bearing in mind that the claims concerning the latter should certainly be dismissed as “premature” in accordance with the decision in Charalambous and Others v. Turkey (no. 46744/07, 3 April 2012); see also the Court’s decisions in Papayianni v. Turkey (no. 479/07, 2 April 2013); Ioannou Iacovou and Others v. Turkey (no. 24506/08, 5 October 2010); and Efthymiou and Others v. Turkey (no. 40997/02, 7 May 2013).

Opting to omit this point, the majority decided to award an amount of thirty million euros as a so-called aggregate sum calculated by multiplying 20,000 euros by 1,456. It should further be pointed out that this assessment was based on the mistaken application of the theory of diplomatic protection and on ignorance of the actual number of missing persons.

(2) As to the sixty million euros awarded by the majority to the enclaved Greek-Cypriot residents of the Karpas peninsula, that decision can on no account be explained by the theory of diplomatic protection. As regards this part of the claim, the Court knows neither the number nor the identity of the persons concerned; hence, the sum awarded remains completely arbitrary.

(3) What of the arrangements for execution of a judgment awarding an amount to be distributed by the Cypriot Government? Several questions arise regarding the execution of such an operative provision, not just as regards the Contracting Parties but also as regards the Committee of Ministers.

In the instant case the Cypriot Government stated that it would be up to them to distribute to the persons concerned the aggregate sum awarded in this case, on the basis of the aforementioned list of persons.

This statement was accepted by the majority.

(a) It can therefore be inferred from the request of the Cypriot Government that in fact they already have authenticated evidence that each of the persons concerned is indeed the heir or an eligible family member of a missing person.

(b) If this is not the case, the applicant Government will naturally have to require each person who comes forward to prove that he or she is indeed the heir or an eligible family member of the victim. Bearing in mind that each victim will undoubtedly have more than one heir or family member, how many weeks, months or even years will these procedures take? Yet the operative provisions lay down a time-limit, namely eighteen months or any other period considered appropriate by the Committee of Ministers. While each of these procedures is in progress, what will become of the colossal sum already paid, which the applicant Government will be free to dispose of as it wishes?

(c) By the same token, what measures does the applicant Government envisage being able to take in order to deal with abusive or fraudulent claims from individuals with no genuine link to any of the victims?

(d) Assuming that, over time, some of the persons currently presumed alive die, will the applicant Government repay the corresponding amount paid by Turkey, on the understanding that this scenario would come within the ambit of the decision in Charalambous and Others (cited above)?

(e) Still greater caution is called for as regards the distribution, under the supervision of the Committee of Ministers, of compensation for non‑pecuniary damage to the enclaved Greek-Cypriot residents of the Karpas peninsula in their capacity as “individual victims”. After all, the Cypriot Government has not even been able in this regard to submit a list or to give any indication of the number of persons involved; any attempt at an evaluation and any execution measures are bound to prove futile. These are all issues that will hamper the execution of this judgment.

Lastly, as regards paragraph 63 of the judgment, I join the partly concurring opinion of Judges Tulkens, Vajić, Raimondi and Bianku.

[1]. “Punitive damages” is the preferred expression in the United States, Canada and continental Europe, while the term “exemplary damages” is used in other Commonwealth countries; however, they both refer to the same concept. Punitive or exemplary damages are understood as being established with the purpose of atoning for the deeds of the wrongdoer and preventing repetition of the wrongful act by the offender or emulation by third parties, without being limited to mere compensation for the pecuniary and non-pecuniary losses caused to the claimant, including loss of profit.

[2]. In my view, the question of the Court’s power to award compensation in inter-State cases should have been dealt with prior to the question of the time-limit for the civil claim. The Court had first to decide whether it had the power to deal with the claim and only in that case should it have decided whether the claim was time-barred. Jurisdiction ratione materiae must be ascertained before jurisdiction ratione temporis. It is a simple question of logic.

[3]. In fact, the Agent of Turkey had accepted, in a meeting of 27 October 1999 with the Agent of Cyprus and the President of the Court, that “if the Court were to find a violation(s), a separate procedure would be required for dealing with claims under Article 41 of the Convention”.

[4]. This statement was in line with the Court’s position in Ireland v. the United Kingdom on just satisfaction, where it said that it “was not necessary to apply [it]”. In that case, the Irish Government did not seek compensation for any individual (see Ireland v. the United Kingdom, 18 January 1978, § 245, Series A no. 25).

[5]. See the report of the committee of experts presented to the Committee of Ministers on 16 March 1950, in Travaux Préparatoires of the European Convention on Human Rights, vol. IV, 1979, p. 44.

[6]. Article 19 (c) of the Draft Articles on Diplomatic Protection (2006) and Article 48 (2) (b) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), which incorporate the principle already set out in the Mavrommatis Palestine Concessions case (PCIJ, Series A No. 2, p. 12), and recently confirmed in the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo) (compensation), ICJ Reports 2012, p. 344, § 57).

[7]. Denmark v. Turkey (dec.), no. 34382/97, 8 June 1999.

[8]. See, on the implied powers of international courts, my separate opinion in Fabris v. France [GC], no. 16574/08, ECHR 2013.

[9]. Certain Phosphate lands in Nauru, ICJ Reports 1992, §§ 32 and 36.

[10]. For the same reason, 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) does not apply to the present case. Varnava and Others does not apply to a delay in filing just-satisfaction claims after the merits have been decided. Moreover, in the present case, the claimant State did not make any claim in respect of the nine applicants who were awarded compensation for non-pecuniary damage in Varnava and Others.

[11]. Furthermore, the United Nations has set an international standard, according to which civil claims related to enforced disappearances are not subject to the statute of limitations (General Comment on Article 19 of the United Nations Declaration on the Protection of all Persons from Enforced Disappearance).

[12]. The claim had been raised, but not settled, prior to Nauru’s independence in 1968. It is also relevant that in 1983 the President of Nauru wrote to the Prime Minister of Australia requesting a reconsideration of the issue, and prior to that initiative had already raised the question on two occasions with the competent Australian authorities.

[13]. See the letter of the Cypriot Government to the Court of 31 August 2007. This letter interrupted the running of time on the claimant’s part, just as the statements of the President of Nauru did.

[14]. See the letter of the Cypriot Government of 25 February 2010.

[15]. Nauru is not the sole precedent. In LaGrand, German consular officials became aware of the LaGrands’ cases in 1992, but the German Government did not express concern or protest to the United States authorities for some six and a half years. The United States objected that the belated action was not admissible. Yet the International Court of Justice (ICJ) accepted the application (LaGrand (Germany v. United States of America), judgment, ICJ Reports 2001, §§ 53 and 57). In the Tagliaferro arbitration case, Umpire Ralston held that, despite the delay of thirty-one years, the claim was admissible, as it had been notified immediately after the injury had occurred (United Nations Reports of International Arbitration Awards (UNRIAA), vol. X, p. 592). See also Umpire Plumley’s similar decision in the Stevenson case (UNRIAA, vol. IX, p. 385). If the ICJ considered that Nauru and LaGrand were admissible, Cyprus v. Turkey is a fortiori admissible. The arbitration cases quoted reinforce this conclusion.

[16]. 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. The Committee of Ministers’ Resolutions of 7 June 2005 and 4 April 2007 did not result in any positive developments. The point will be expanded upon later in this opinion.

[17]. The respondent State invoked Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007. This case-law cannot be applied to the very distinct situation of the Karpas residents. Furthermore, the extraordinary length of the procedure proposed by the respondent State would scarcely be in keeping with effective protection of the human rights of the missing persons’ families. Such a requirement would lead to a situation incompatible with the very purpose of the Convention.

[18]. One cannot affirm a point at one time and deny it at another time. This is a principle of good faith (Article 26 of the Vienna Convention on the Law of Treaties).

[19]. Article 45 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts.

[20]. Demopoulos and Others, cited above, § 127.

[21]. De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, § 16, Series A no. 14. Thus, the respondent State’s argument that the exercise of diplomatic protection by the claimant State requires the exhaustion of domestic remedies by the individual does not apply to just-satisfaction claims.

[22]. This number results from the list of 1,493 names published in the Official Gazette of Cyprus on 10 July 2000, minus 28 persons who were identified after 2000 as Greek Cypriots who had been exhumed in territory under the control of the government of Cyprus and 9 missing persons whose cases were examined in Varnava and Others (cited above). The number had previously been submitted to the Commission on 7 July 1998 and to the Court on 30 March 2000. The tripartite Committee on Missing Persons (a Greek Cypriot, a Turkish Cypriot and a member of the ICRC appointed by the United Nations Secretary General) also adopted the list of 1,493 missing persons. The Grand Chamber did not explicitly accept this number, which is not referred to either in paragraph 58 in the Court’s assessment part of the judgment or in its operative provisions. Paragraph 47 in the admissibility part of the judgment simply refers to the submissions of the claimant State, without any endorsement by the Court.

[23]. For this purpose, the claimant State refers to the Report of the United Nations Secretary-General on the number of enclaved Greek and Maronite Cypriots in the occupied areas, which was presented to the Commission for the first time on 1 June 1998. This report states that in August 1974 20,000 Greek Cypriots lived in the enclaved region. The Court did not endorse this number, or any other.

[24]. The respondent Government were perfectly aware of this possible result, which they considered “speculative” (see paragraph 84 of their observations of 26 October 2012).

[25]. Varnava and Others, cited above, § 170, and Costas & Thomas Orphanou v. Turkey (dec.), no. 43422/04, 1 December 2009. According to Varnava and Others, it would not be possible to bring individual complaints after the end of 1990 concerning the obligation under the procedural limb of Article 2 of the Convention. The Cypriot Government have explicitly acknowledged that in the light of the “newly reformulated time-limits” in Varnava and Others, they had to make this inter-State claim in order not to lose their rights under Article 41. Since the inter-State compensation claim is based on a case already decided on the merits, the six-month rule does not apply (see footnote 10 above).

[26]. See my opinion in Trévalec v. Belgium (just satisfaction), no. 30812/07, 25 June 2013. As I stated therein, paragraph 9 of the Court’s Practice Direction of 28 March 2007 is no longer up to date.

[27]. Chember v. Russia, no. 7188/03, § 77, 3 July 2008 (10,000 euros); X v. Croatia, no. 11223/04, § 63, 17 July 2008 (8,000 euros); Igor Ivanov v. Russia, no. 34000/02, § 50, 7 June 2007 (5,000 euros); Mayzit v. Russia, no. 63378/00, §§ 87-88, 20 January 2005 (3,000 euros); and Nazarenko v. Ukraine, no. 39483/98, § 172, 29 April 2003 (2,000 euros).

[28]. Bursuc v. Romania, no. 42066/98, § 124, 12 October 2004 (10,000 euros).

[29]. Gorodnitchev v. Russia, no. 52058/99, § 143, 24 May 2007 (10,000 euros).

[30]. Rusu v. Austria, no. 34082/02, § 62, 2 October 2008 (3,000 euros); Crabtree v. the Czech Republic, no. 41116/04, § 60, 25 February 2010 (2,000 euros); and Khudyakova v. Russia, no. 13476/04, § 107, 8 January 2009 (5,000 euros).

[31]. For example, Celik and Yɩldɩz v. Turkey, no. 51479/99, §§ 30-31, 10 November 2005, and Davtian v. Georgia, no. 73241/01, § 70, 27 July 2006.

[32]. For instance, Stradovnik v. Slovenia, no. 24784/02, §§ 23-25, 13 April 2006, where the Court awarded 6,400 euros for the excessive length of the proceedings, when the applicant had asked for 5,000 euros.

[33]. For example, Engel and Others v. the Netherlands (Article 50), 23 November 1976, § 10, Series A no. 22 (100 Dutch guilders), and Vaney v. France, no. 53946/00, § 57, 30 November 2004 (one euro).

[34]. For instance, in S.L. v. Austria, no. 45330/99, § 52, ECHR 2003‑I, the Court made an award for non‑pecuniary damage, even though the impugned provision of the Austrian Criminal Code had already been repealed and the applicant had therefore “achieved in part the objective of his application”.

[35]. For example, Mokrani v. France, no. 52206/99, § 43, 15 July 2003, and Gürbüz v. Turkey, no. 26050/04, § 75, 10 November 2005 (see the critical opinion of Judges Caflisch and Türmen).

[36]. Sporrong and Lönnroth v. Sweden (Article 50), 18 December 1984, § 25, Series A no. 88; Bönisch v. Austria (Article 50), 2 June 1986, § 11, Series A no. 103; and Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 59, 5 July 2007.

[37]. For example, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 18-20, Series A no. 285‑C, despite the fact that the decisions of the Spanish courts subsequent to the principal judgment had already afforded the applicants reparation for non-pecuniary damage.

[38]. For example, Xenides-Arestis v. Turkey (just satisfaction), no. 46347/99, 7 December 2006, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012.

[39]. See the references in the Second Report on State responsibility by Mr Gaetano Arangio-Ruiz, Special Rapporteur, A/CN.4/425 & Corr.1 and Add.1 & Corr.1, pp. 35-40, with a special reference to the Rainbow Warrior case and to the ruling of 6 July 1986 by the Secretary-General (UNRIAA, vol. XIX, pp. 197 et seq.).

[40]. See Laura M. B. Janes et al. (USA) v. United Mexican States, 16 November 1925, UNRIAA, vol. IV, pp. 82-98; the Naulilaa case (Portugal v. Germany), 31 July 1928 and 30 June 1930, UNRIAA, vol. II, pp. 1011-77; S.S. “I’m alone” case (Canada v. United States), 30 June 1933 and 5 January 1935, UNRIAA, vol. III, pp. 1609-18; and the Lighthouses Case (France v. Greece), 24-27 July 1956, UNRIAA, vol. XII, pp. 161-269. Thus, it is not decisive that the Draft Articles on State Responsibility indicate that the purpose and scope of reparation are limited to remedial measures, excluding punitive damages (Commentary to Articles 36 and 37). This point of view still follows the conservative opinion expressed in the outdated Lusitania cases, according to which: “The remedy should be commensurate with the loss, so that the injured party may be made whole” (Opinion in the Lusitania Cases, 1 November 1923, UNRIAA, vol. VII, pp. 32-44). Some modern model bilateral investment treaties specifically reject punitive damages (see Article 34 § 3 of the 2012 US Model BIT, and Article 44 § 3 of the 2004 Canadian Model BIT), which by implication shows that they would have been applied if they were not excluded. That is the case in most of these treaties.

[41]. In the Bluske v. WIPO judgment of 13 July 1994, the International Labour Organisation Administrative Tribunal ordered the respondent organisation to pay the complainant an amount of 10,000 Swiss francs “by way of penalty for each further month of delay” in discharging its obligations.

[42]. Nonetheless, the UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, 2012 Edition, p. 346, affirms that “[d]omestic law may also apply to issues such as punitive damages. In one case a court seemingly accepted the validity of a claim for punitive damages in the context of a CISG damages claim, although the determination of the amount of damages was left open”.

[43]. In some legal areas of the Union, like the regulation of the agricultural and the securities markets, there has been a policy of clearly punitive civil claims, such as in Article 18 of Regulation no. 1768/95 (referring to “special civil-law claims”) or in Article 28 of Directive 2004/109/EC (referring to “civil and/or administrative penalties”). This trend has been endorsed by the Court of Justice in both Von Colson and Kamann v. Land Nordrhein Westfalen, Case C-14/83, and Harz v. Deutsche Tradax GmbH, Case C‑79/83, where the Court of Justice considered that compensation must be sufficient to act as a deterrent against sex discrimination in employment. In Manfredi v. Lloyd Adriatico Assicurazioni SpA and others, joined cases C‑295/04 to C-298/04, the Court of Justice went even further, establishing that, in accordance with the principle of equivalence, national courts could award punitive damages for breaches of European Union competition law if and when such damages were also available for breaches of national law. The Commission has expressed a favourable view on this case-law, for example in its White Paper on damages actions for breach of the European Union antitrust rules, 2008, § 2.5.

[44]. Interim Resolution CM/ResDH(2008)1 of 6 March 2008.

[45]. For example, the Explanatory Report to the Civil Law Convention on Corruption (ETS no. 174, § 36) notes that States Parties whose domestic law provides for punitive damages are not required to exclude their application in addition to full compensation. In the field of social rights, the European Committee of Social Rights monitors the requirement for the damages awarded in practice to be sufficiently dissuasive to prevent future infringements (Second Report submitted by the government of Hungary, covering the period from 1 January 2007 until 31 December 2010, p. 83).

[46]. Velasquez Rodriguez v. Honduras (reparations and costs), judgment of 21 July 1989, § 38; Godinez Cruz v. Honduras (reparations and costs), judgment of 21 July 1989, § 36; and Garrido and Baigorria v. Argentina (reparations and costs), judgment of 27 August 1998, §§ 43-44.

[47]. Myrna Mack Chang v. Guatemala (merits, reparations and costs), judgment of 25 November 2003, §§ 246-86, and especially the separate opinion of Judge Cançado Trindade.

[48]. For example, the killing of a political opponent or the silencing of a critical television channel could justify such punitive damages.

[49]. For example, the prolonged indifference of a State Party to a judgment of the Court which had found it in breach of the Convention, in spite of repeated efforts of the Committee of Ministers and the injured party to have the judgment complied with. Punitive damages can be awarded in proceedings initiated by the Committee of Ministers itself under its new powers set out in Article 46 of the Convention or in non‑compliance proceedings initiated by the injured party (see my separate opinion in Fabris, cited above).

[50]. The gravity of some tactics used to silence the applicant, like directly or indirectly threatening his life or that of his loved ones or initiating arbitrary criminal proceedings against the applicant, may call for punitive damages. This principle was established in Oferta Plus S.R.L. v. Moldova (just satisfaction), no. 14385/04, § 76, 12 February 2008.

[51]. H. Lauterpacht, “Règles générales du droit de la paix”, in Recueil des cours, 1937-IV, vol. 62, p. 350: “A violation of international law may be such that it needs, in the interest of justice, an expression of disapproval that goes beyond material reparation. To place limits on liability within the State to restitutio in integrum would be to abolish the criminal law and a major part of the law of torts. To abolish these aspects of liability between States would be to adopt, on the grounds of sovereignty, a principle that is repugnant to justice and carries with it an encouragement to wrongfulness.”

[52]. This question was raised already in the letter of the Cypriot Government to the Court of 31 August 2007, where they stated that it would become necessary to apply Article 41 if the process of supervision of the execution of the Grand Chamber judgment of 2001 by the Committee of Ministers were thwarted. That message was repeated in the letter of the same Government to the Court of 25 February 2010. In its submissions of 25 November 2011, the claimant State explained that it required that “in response to the Court’s finding of a continuing State policy and practice in the present case”, Turkey had to abide fully by the judgment on the merits and bring to an end the conduct found to be in breach of the Convention and avoid further repetition.

[53]. The Court’s power to interpret its own judgments is indisputable, even at the request of the injured party (see my separate opinion in Fabris, cited above). In the present inter-State case, the Court goes a step further, and accepts its competence to interpret its Demopoulos and Others decision at the request of the State of the victims’ nationality.

[54]. Article 48 (2) (a) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).

[55]. For example, Andersen v. Denmark, no. 12860/87, Commission decision of 3 May 1988, unreported, and Frederiksen and Others v. Denmark, no. 12719/87, Commission decision of 3 May 1988, Decisions and Reports 56.

[56]. See the official documents of the “TRNC” authorities in annex C to the application of Cyprus of 25 November 2011, and the items from the Turkish Cypriot and Turkish press in annex D, as well as the reports on illegal developments and construction in the occupied area of Cyprus in annexes A and B.

[57]. Law for the compensation, exchange and restitution of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, as amended by Law nos. 59/2006 and 85/2007 (hereinafter “Law 67/2005”).

[58]. According to section 8 of “TRNC” Law 67/2005, the Commission may restitute immovable property to Greek Cypriots if ownership or use of that property has not been transferred to any natural or legal person other than the State. But this restitution is made conditional on the fact that it shall not endanger “national security and public order”, is not allocated for “public-interest reasons” and is outside the military areas or military installations. Other immovable property may be restituted on condition that it has not been allocated for “public-interest or social-justice purposes”. It is obvious that with such a limited ex post facto remit, the Commission by itself is not capable of preventing any sale of property or its exploitation, let alone of putting an end to an ongoing violation.

[59]. CM/inf/DH (2010)36. As explained in the text, this position was based on legal and factual errors. The confusion between the domestic-remedies rule under Article 35 of the Convention and the States’ obligation to abide by and implement judgments under Article 46 prejudiced the statement. Moreover, the facts on the ground showed that serious violations of Greek Cypriots’ property rights continued to be committed in the occupied area.

[60]. “Therefore, pending those decisions of closure, the Turkish Delegation will not take part in any discussion, procedural or substantive, concerning all Cyprus related cases.” This statement was made in a letter from the Turkish Government to the Committee of Ministers of 12 September 2011, to which the Cypriot Government reacted by its letter to the Chairman of the Minister’s Deputies of 2 December 2011.

[61]. In my view, the Court’s declaration should have been included in the operative part of the judgment, for the sake of legal certainty and the clarity of the judgment. In any case, the legal strength of the Court’s declaratory judgment is not at stake. The present judgment cannot be legitimately interpreted in such a way as to defraud the Court’s clear intention to make an authoritative declaration on the effects of Demopoulos and Others, as requested by the claimant State. In so-called “quasi-pilot judgments”, the reasoning contains directives which are not subsequently mentioned in the operative part. Nonetheless, those directives are binding. That method was used in the present judgment also.

[62]. Commentaries on the Laws of England, 1768, Book 3, Chapter 13.

[63]. With the exception of Judge Karakaş, who joins us in this opinion.

[64]. Preliminary objections, ICJ Reports 1992, p. 240.

[65]. Compensation, ICJ Reports 2012, p. 324.

[66]. “... that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life‑threatening circumstances” (§ 136).

[67]. Reports 1949, p. 36.

[68]. Point 8 of the operative provisions of the arbitral award of 30 April 1990, United Nations Reports of International Arbitration Awards, vol. XX, p. 273.

[69]. 14 February 2002, § 75. See also the ICJ judgment in LaGrand (Germany v. United States of America) of 27 June 2001, § 116.

[70]. See the official website of the Committee on Missing Persons in Cyprus: http://www.cmp-cyprus.org/

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