The Committee of Ministers (CoM) held its third special human rights meeting between 23rd– 25th September 2014; its main purpose was to examine the state of execution of a number of European Court of Human Rights’ (ECtHR) judgments. These included the judgments delivered against Turkey relating to its military operations in Cyprus in 1974, specifically Varnava[1] and the Xenides-Arestis group cases.[2] Using these judgments and their state of execution, this post critically assesses the effectiveness of the execution mechanism of the ECtHR, focusing on the non-conformity of Sates with just satisfaction awards.

Final ECtHR judgments are predominantly declaratory in nature, establishing breaches of Convention rights by the State Party in question, leaving the domestic authorities with a discretion to decide as to the specific implementation measures to be adopted. In addition to the declaratory judgments the Court may also award monetary awards, known as ‘just satisfaction’, which comprise of pecuniary and non-pecuniary damage, and/or costs.[3] The CoM is the body responsible for supervising the execution of the Court’s final judgments, including awards of just satisfaction. Accordingly, it has been responsible for supervising the execution of the Varnava and Xenides-Arestis group cases.

In the case of Varnava, the applicants alleged that their relatives had disappeared after being detained by Turkish military forces and that the Turkish authorities have not accounted for them since. The Court found that there has been a continuing violation of Articles 2, 3 and 5 of the ECHR. It also awarded, as just satisfaction, the sum of EUR 12,000 in non-pecuniary damages to each of the applicants and EUR 8,000 for costs and expenses.[4] The Xenides-Arestis group cases were brought against Turkey on the ground of a continuing violation of Article 1 Protocol No.1, and in some of the cases Article 8, due to the prevention, by Turkish military forces, of the applicants’ access and use of their properties in the northern part of Cyprus. The ECtHR, in addition to making a declaratory judgment in all thirty-three cases, awarded each applicant with a specified amount as just satisfaction.[5]

Despite the obligation of State Parties to ‘(…) abide by the final judgment of the Court in any case in which they are parties’,[6] Turkey has yet to take any steps towards the implementation of these judgments. The CoM has adopted Interim Resolutions for some of these cases in numerous previous meetings, calling Turkey to comply with its obligations and pay the sums awarded.[7] This issue returned to the Committee’s agenda in September 2014 at the meeting where a new Interim Resolution was adopted. However, the question that arises is whether this is yet another empty threat towards Turkey, or whether the effect of this latest resolution will be the catalyst for Turkey’s compliance with its ECHR obligations.

With this current Interim Resolution, the Committee has adopted a comparatively tougher tone to demonstrate the seriousness of Turkey’s failure to comply and the exigency for the State to do so, declaring explicitly that ‘(…) this continued refusal by Turkey is in flagrant conflict with its international obligations, both as a High Contracting Party to the Convention and as a member State of the Council of Europe;’[8] While this wording may seem promising, the recurring question is whether the Committee possesses the power to force a State into complying, or whether it all depends on the willingness of the respective State to abide by this obligation.

Following Protocol No.14, the CoM has acquired further powers in the supervision of the execution of final judgments. In addition to measures such as diplomatic pressures, the issuing of interim resolutions against non-compliant States, and the adoption of decisions and press releases, the Committee now has the power to make referrals to the Court. It can refer a case where interpretation of the final judgment is required,[9] as well as ask the court to initiate infringement proceedings, where the respective State fails to abide by a final judgment.[10]

It could be argued that the Interim Resolutions measure employed in Varnava and Xenides-Arestis is sufficient to push States, such as Turkey, into reconsidering their position and making the just satisfaction payments. This could be substantiated in relation to the cases in question, if one considers the steps previously taken by the Committee in the Loizidou judgment, the first case brought against Turkey on the basis of Article 1, Protocol 1.[11] The Committee adopted Interim Resolutions, in which they strongly urged Turkey’s compliance with its obligation to pay the just satisfaction awarded, declaring that it was prepared to take any measures necessary if the sum was not paid.[12] Even though Turkey insisted that such an award ‘(…) would undermine the negotiations between the two communities and would spoil the efforts to reach a settlement’,[13] it eventually complied, paying the sum awarded. One could therefore support that since the Interim Resolutions measure has in the past been an effective approach towards Turkey and the Greek-Cypriot cases, it can likewise be sufficient in pushing Turkey to abide by its obligations in the current cases.

Nevertheless, one must bear in mind the particular circumstances under which Turkey complied in Loizidou. According to the erstwhile Turkish Minister of Foreign Affairs, the government and the CoE had reached an understanding in which Turkey’s agreement to abide by the judgment would not set a precedent.[14] The existence of such an understanding is both doubtful and unsubstantiated when one notes the purpose and spirit of the ECHR, coupled with the lack of a corresponding agreement by the CoE. Notwithstanding this, Turkey’s stance indicates that it welcomed this judgment as a one-off case and was not prepared to create a precedent for subsequent cases.

One must further note that the delayed decision of Turkey to comply with Loizidou followed the commencement of the State’s EU membership preparations preceding the accession negotiations, which began in October 2005. In May 2003, some months prior to Turkey’s implementation of the judgment, the European Council had adopted an Accession Partnership in which it highlighted that Turkey’s respect for the ECtHR judgments was a priority for moving forward with the negotiations.[15] Furthermore, in Turkey’s 2003 Progress Report, the European Commission mentioned specifically the State’s non-implementation of Loizidou.[16] This suggests that political pressures to meet the threshold for opening the accession negotiations likely contributed to Turkey’s eventual compliance with this judgment, arguably to a greater extent than the Committee’s use of Interim Resolutions.

It can be argued that the current economic and geopolitical state could equally work as an incentive for compliance with these judgments. While arguments arise as to whether Turkey still aspires to join the EU, the adoption of an EU Strategy in September 2014 indicates that officially Turkey continues taking steps towards accession.[17] Yet, any prospect of concluding the negotiation stage and adopting an Accession Treaty is dependent on the opening and closing of the thirty-five Chapters of the Acquis, including Chapter 23 on the Judiciary and Fundamental Rights. This Chapter has been blocked since 2009 for various reasons, including Turkey’s non-compliance with the judgments in question. Therefore, if Turkey wishes to proceed with its accession, it will need to reconsider its stance on fundamental rights including, as noted by the Commission in Turkey’s 2014 Progress Report, implement all pending ECtHR judgments.[18] Therefore, such interim resolutions, which publicise Turkey’s non-compliance with these judgments, could be used as a basis for Chapter 23 remaining closed. A more pro-active approach, proposed by one of the applicants’ representatives, could have the CoM explicitly recommending the continuation of the blocking of Chapter 23 until these judgments have been enforced.[19]

While Turkey’s accession to the EU may well be a good way to incentivise compliance, the reality remains that the CoM’s current efforts in relation to these judgments have been ineffective. One could argue that if Turkey maintains its current position, refusing to abide by this obligation, the CoM may decide to use the Article 46 (4) infringement proceedings power and refer back to the ECtHR for a decision on whether the State has failed to fulfil its implementation obligations. Nevertheless, one must appreciate that a State that has repeatedly ignored calls, through interim resolutions and other diplomatic pressures, to comply with final judgments, may equally maintain this position in relation to any infringement proceedings’ judgment, simply refusing to comply.

The question of whether the CoM can force Turkey’s compliance becomes even more important when one considers the recent judgment of Cyprus v Turkey.[20] Here, the Court awarded the Cypriot Government the substantial amount of EUR 90,000,000 in non-pecuniary damages for the sufferance of the relatives of missing Greek Cypriots and enclaved Greek Cypriot residents in the Karpas Peninsula. Therefore, it will be interesting to see the approach of the CoM in supervising the execution of this judgment, as well as the attitude and position of Turkey on the matter.

These two cases will be reconsidered by the CoM at its 1214th meeting in early December 2014. It thus remains to be seen whether the outcome of this meeting will see Turkey backed into a corner with no other choice than to comply, or whether we will witness the maintenance of the status quo, namely strong condemnation, yet empty threats.

[1] Varnava and Others v. Turkey, Application nos. 16064/90, 16065/90/, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 (ECtHR, 18 September 2009)

[2] Xenides-Arestis v. Turkey, Application no. 46347/99 (ECtHR, 22 March 2006); Xenides-Arestis v.Turkey (Just satisfaction), (ECtHR, 23 May 2007); 32 other cases against Turkey were grouped together with this judgment for the purposes of supervision of execution, referred to as Xenides-Arestis group cases.

[3] Article 41 ECHR

[4] Varnava and others, para 225

[5] See for example Xenides-Arestis v.Turkey (Just satisfaction), Application no. 46347/99 (ECtHR, 23 May 2007);

[6] Article 46 (1) ECHR

[7] See Interim Resolutions CM/ResDH (2008)99 and CM/ResDH (2010)33 adopted respectively in 2008 and 2010 in the case of Xenides-Arestis and Interim Resolution CM/ResDH (2013)201 adopted in 2013 in the Varnava case.

[8] Interim Resolution CM/ResDH(2014)185 in the cases Varnava, Xenides-Arestis and 32 other cases against Turkey (Adopted by the Committee of Ministers on 25 September 2014 at the 1208th meeting of the Ministers’ Deputies)

[9] Article 46 (3) ECHR

[10] Article 46 (4) ECHR

[11] Loizidou v. Turkey, Application no. 15318/89 (ECtHR, 18 December 1996); Loizidou v. Turkey, (Article 50) (40/1993/435/514), (ECtHR, 28 July 1998)

[12] See Interim Resolution ResDH(2003)174 (Adopted on 12 November 2003 at the 860th meeting of the Ministers’ Deputies); Interim Resolution ResDH(2001)80 (Adopted on 26 June 2001 at the 757th meeting of the Ministers’ Deputies); Interim Resolution DH(2000)105 (Adopted on 24 July 2000 at the 716th meeting of the Ministers’ Deputies); and Interim Resolution ResDH(99)680 (Adopted on 6 October 1999 at the 682nd meeting of the Ministers’ Deputies)

[13] Loizidou (Article 50) para 21

[14] As reported in BBC news ‘Turkey compensates Cypriot refugee’ (2 December 2003) available at> last accessed 29/10/14

[15] Council Decision of 19 May 2003 on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Turkey, 2003/398/EC, OJEU, L145/40 (12 June 2003) p.43

[16] European Commission, ‘2003 Regular Report on Turkey’s Progress towards Accession’, pp. 24, 41

[17] Republic of Turkey, Ministry for EU Affairs, ‘Turkey’s European Union Strategy: Determination in the Political Reform Process, Continuity in Socio-Economic Transformation, Effectiveness in Communication’ (Ankara, September 2014)

[18] European Commission, ‘2014 Turkey Progress Report’, p. 48

[19] Communication from the applicants’ representative (12/02/2014) in Xenides-Arestis group against Turkey (Application No. 46347/99), Prior to the Committee of Ministers’ 1193 meeting (4-6 March 2014) (DH)

[20] Cyprus v. Turkey (Just Satisfaction), Application no. 25781/94 (ECtHR, 12 May 2014)