Inter-State cases before the ECtHR as a tool for human rights protection in armed conflict

In this set of informative articles, expert Natalia Hurkovska gradually reveals the principles of international humanitarian law, international human rights law, and international justice to define an adequate public demand for responsibility for war crimes and lasting peace. The fifth informative publication.

In previous articles, we began to review the status and interpretations of human rights during armed conflict conducted by the European Court of Human Rights (ECHR) for a better understanding of international human rights standards. In order to understand international humanitarian law, international human rights law, and international justice from the perspective of the decisions made by the ECHR, we first familiarized ourselves with individual appeals and the rules for derogating from obligations. This publication proposes to expand the horizons through interstate complaints. At the same time, since the previous articles contained an overview of the complaints made by Ukraine against the Russian Federation, in this information article we will consider complaints from other states.

The possibility of filing interstate complaints is established in Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which states that “any High Contracting Party may refer to the Court the issue of any violation of the provisions of the Convention and protocols to it, which has been committed, in its opinion, by another High Contracting Party”. An interstate application/complaint can be applied in three contexts: 1) as an actio popularis, where the motivation of the complaint goes beyond self-interest; 2) in the interests of the state’s citizens in another state; 3) in the state’s own economic or political interests.

In the Grand Chamber judgment delivered on May 10, 2001, in the case of Cyprus v. Turkey, the ECHR held by sixteen votes to one that the issues raised in the case entailed Turkey’s responsibility for 14 violations. The circumstances of the complaint related to the situation that existed in the north of Cyprus after the military operations conducted there by Turkey in July and August 1974 and the ongoing division of the territory of Cyprus. Cyprus claimed that Turkey was responsible for the violation, despite the proclamation of the Turkish Republic of Northern Cyprus (TRNC) in November 1983, pointing to the international community’s condemnation of the establishment of the TRNC.

The circumstances under which the Greek Cypriots and their relatives went missing are:

•  the continuing violation of Article 2 (Right to Life) of the Convention regarding the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the missing Greek Cypriots who have disappeared in life-threatening circumstances;
• the ongoing violation of Article 5 (Right to Liberty and Security of Person) regarding the failure of the Turkish authorities to conduct an effective investigation into the whereabouts and fate of the missing Greek Cypriots regarding whom there had been a substantiated claim that they had been in Turkish custody at the time of their disappearance;
•  the continuing violation of Article 3 (Prohibition of Inhuman or Degrading Treatment), as the silence of the Turkish authorities in the face of the real problems of the relatives, had reached a level of cruelty that can only be qualified as inhuman treatment.

 Circumstances regarding housing and property of IDPs are:

• the continued violation of Article 8 (Right to Respect for Private and Family Life, Home and Correspondence) in the refusal to allow any displaced Greek Cypriots to return to their homes in Northern Cyprus;
• the continuing violation of Article 1 of Protocol No. 1 (Protection of Property) regarding the fact that Greek Cypriot owners in northern Cyprus had been denied access to, control, use of their property, and any compensation for interference with their property rights;
• violation of Article 13 (Right to an Effective Remedy) in failing to provide Greek Cypriots not residing in Northern Cyprus with any remedy to lodging a complaint for interference with their rights under Article 8 and Article 1 of Protocol No. 1.

 The living conditions of Greek Cypriots in the Karpas region in Northern Cyprus constituted:

• violation of Article 9 (Freedom of Thought, Conscience, and Religion) in respect of the Greek Cypriots living in Northern Cyprus, as a result of the restriction of their freedom of movement, which limited access to places of worship and participation in other aspects of religious life;
• violation of Article 10 (Freedom of Expression) in respect of the Greek Cypriots living in Northern Cyprus due to excessive censorship of the school textbooks used in their primary schools;
• the continuing violation of Article 1 of Protocol No. 1 in respect of the Greek Cypriots residing in Northern Cyprus of their right to peaceful possession of their property was not ensured in the event of their permanent departure from that territory and the inability to exercise the right to inherit from their relatives in the territory from which they left;
•  violation of Article 2 of Protocol No. 1 (Right to Education) in respect to Greek Cypriots who lived in Northern Cyprus because they did not have proper secondary schools;
•       violation of Article 3 in respect to Greek Cypriots living in the Karpas area of Northern Cyprus because they were subjected to degrading discrimination;
• violation of Article 8 regarding the right of Greek Cypriots residing in Northern Cyprus to respect for their private and family life and respect for their home;
• violation of Article 13 due to the lack of practical legal remedies regarding the government’s interference with the rights of Greek Cypriots residing in Northern Cyprus, in conformance with Articles 3, 8, 9, and 10 of the Convention and Articles 1, and 2 of Protocol No. 1.

The rights of Turkish Cypriots residing in Northern Cyprus constituted:

• violation of Article 6 (Right to a Fair Trial) due to the legislative practice of allowing civilian cases to be tried by military courts.

In the same case, in the judgment of the Grand Chamber of May 12, 2014, on the issue of just satisfaction, the Court held that the time that had passed since the release of the main judgment of May 10, 2001, did not prevent it from considering the claims of the Government of Cyprus for just satisfaction. It was concluded that Turkey should pay Cyprus 30,000,000 euros (EUR) in compensation for non-pecuniary damage caused to the relatives of the missing persons and 60,000,000 EUR in compensation for non-pecuniary damage caused to the Greek Cypriot residents of the enclave of the Karpas Peninsula. The court noted that these sums should be distributed by the government of Cyprus to individual victims under the supervision of the Committee of Ministers of the Council of Europe.

The circumstances of the above-mentioned case are typical for violations that have been occurring since 2014 in the territories out of Ukrainian control. Owing to the objectivation of the decision in the case, thousands of Ukrainians proved in national courts the circumstances that were confirmed by the documents of the DPR (DNR)/LPR (LNR). In the Cyprus case, the Court referred to the Advisory Opinion of the International Court of Justice in the Namibia case that in situations similar to those still occurring. According to the Court, life in the relevant territory continued for its inhabitants, and that life must be bearable and protected by the de facto authorities, including its courts. The Court believed that in the interests of residents, the actions of illegitimate authorities cannot simply be ignored by third states or international institutions, especially courts. To hold otherwise would be to deprive the inhabitants of the territory of all their rights whenever they were discussed in an international context, which would mean depriving them of even the minimum standard of rights to which they were entitled. Having reached this conclusion, the majority of the Court emphasized that its reasoning does not in any way legitimize the TRNC and confirmed the opinion that the government of the Republic of Cyprus remains the only legitimate government of Cyprus. The “Namibian exceptions” were used by national courts to confirm in their decisions the factual circumstances that were contained in the documents of the unofficial government.

Similar circumstances have been considered by the Grand Chamber of the ECHR since May 2021, these are two interstate cases submitted by Armenia on September 27, 2020, and Azerbaijan on October 27, 2020. The review is still ongoing. The applications relate to the hostilities between Armenia and Azerbaijan and contain allegations of widespread violations of the Convention by the respondent States during the hostilities, including indiscriminate attacks on civilians, as well as on civilian and government property and infrastructure; executions, ill-treatment and mutilation of combatants and civilians; capture and continued detention of prisoners of war; forced relocation of the civilian population to areas affected by military operations. In addition, Azerbaijan claims that Armenia is responsible for a number of violations of the Convention since 1992, including the ongoing displacement of hundreds of thousands of Azerbaijanis from their homes and property; ill-treatment and disappearance of Azerbaijani citizens without proper investigation; and destruction of cultural and religious monuments. In the context of the aforementioned interstate cases, the Court, upon request, adopted a provisional measure under Rule 39 (Provisional Measures) of the Rules of Court and called on Azerbaijan and Armenia to refrain from taking any measures, including military action, that could lead to violations of the Convention rights of the civilian population.

Also, in the context of the events between Armenia and Azerbaijan, on October 4, 2020, a statement regarding the alleged role of Turkey in the armed actions between Armenia and Azerbaijan that took place between September 27 and November 10, 2020 (the date of entry into force of the ceasefire agreement) was registered. In particular, Armenia claims that Turkey provided assistance to the armed forces of Azerbaijan during the conflict. In this case, the adopted primary temporary measures were canceled by the Court, as the grounds for their application no longer existed.

Today, we can observe that security guarantees are not working, and interim measures (security measures) are being ignored by offending member states. The guarantee of protection should be a mechanism that must have effective procedures that not only limit but make it impossible for the offending state to abuse its own economic, armed, and human superior resources.

For reference

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union (helsinki.org.ua).

Opinions, conclusions, and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government, or UHHRU. The contents are the responsibility of the authors and ECHR.

USAID is the world’s premier international development agency and a catalytic actor driving development results. USAID’s work demonstrates American generosity, promotes a path to recipient self-reliance and resilience, and advances U.S. national security and economic prosperity. USAID has partnered with Ukraine since 1992, providing more than $3 billion in assistance. USAID’s current strategic priorities include strengthening democracy and good governance, promoting economic development and energy security, improving healthcare systems, and mitigating the effects of the conflict in the East. For additional information about USAID in Ukraine, please call USAID’s Development Outreach and the Communications Office at +38 (044) 521-5753. You may also visit our website: http://www.usaid.gov/ukraine or our Facebook page at https://www.facebook.com/USAIDUkraine