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

(Translation)

1. We voted with the majority and are thus in agreement with all points of the operative provisions of this important judgment [63] .

2. The reason we feel compelled to express a separate opinion is solely due to one specific aspect, namely the remarks – which we cannot endorse – contained in the final sentence of paragraph 63 of the judgment. This paragraph concerns the request made by the Cypriot Government on 25 November 2011 in the course of the proceedings which, although entitled “Application for just satisfaction (Article 41)”, actually relates to the procedure for execution of the principal judgment by the Committee of Ministers of the Council of Europe and requests the Court to take certain steps in order to facilitate the execution of that judgment (see paragraph 8 of the present judgment).

3. In paragraph 63 of the judgment the Court outlines some principles concerning the execution of its judgments to which we fully subscribe. It states in particular that “the respondent Government is, in any event, formally bound by the relevant terms of the main judgment” and, accordingly, that “it is not necessary to examine the question whether [the Court] has the competence under the Convention to make a ‘ declaratory judgment ’ in the manner requested by the applicant Government...”. It “ observe [s] in this connection that the Court has held that there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property , as well as any compensation for the interference with their property rights (section III, point 4 of the operative provisions of the principal judgment)” . The Court accordingly concludes that “[ i ]t ... falls to the Committee of Ministers to ensure that this conclusion, which is binding in accordance with the Convention, and which has not yet been complied with, is given full effect by the respondent Government” .

4. The Court ’ s subsequent statement, according to which “[s] uch compliance could not ... be consistent with any possible permission, participation, acquiescence or other form of complicity in any unlawful sale or exploitation of Greek - Cypriot homes and property in the northern part of Cyprus”, and which basically does no more than reiterate the dictum of the principal judgment on this issue, does not give rise to any particular difficulties, although this repetition might be said to be entirely superfluous in the light of the purpose of the Article 41 judgment.

5. The sentence we have difficulty with is the following: “Furthermore , the Court ’ s decision in the case of Demopoulos and Others ... to the effect that cases presented by individuals concerning violation - of - property complaints were to be rejected for non-exhaustion of domestic remedies, cannot be considered, taken on its own, to dispose of the question of Turkey ’ s compliance with P art III of the operative provisions of the principal judgment in the inter-State case.”

6. In our view, such a statement – even if it is not contained in the operative provisions – seeks to extend the powers of the Court and runs counter to Article 46 § 2 of the Convention by encroaching on the powers of the Committee of Ministers of the Council of Europe, to which the Convention has entrusted the task of supervising execution of the Court ’ s judgments.

7. The Court does not have jurisdiction to verify whether a Contracting Party has complied with the obligations imposed on it by one of the Court ’ s judgments (see Oberschlick v. Austria , nos. 19255/92 and 21655/93, Commission decision of 16 May 1995, Decisions and Reports 81-A, p. 5, and Mehemi v. France (no. 2) , no. 53470/99, § 43, ECHR 2003 ‑ IV).

8. It is true that the current version of Article 46 of the Convention, as amended by Protocol No. 14, allows the Committee of Ministers to refer a matter to the Court in two sets of circumstances: firstly, where the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, in order for the Court to give a ruling on the question of interpretation (§ 3); and, secondly, where the Committee of Ministers considers that a High Contracting Party is refusing to abide by a final judgment in a case to which it is a party (§ 4). However, in both cases the Committee of Ministers must have taken the referral decision by a qualified majority of two thirds of the representatives entitled to sit on the C ommittee.

9. It is not open to a High Contracting Party to refer a matter under paragraphs 3 and 4 of Article 46 of the Convention directly to the Court without going through the procedure laid down in those provisions. Allowing such a possibility, as the judgment appears to do, runs the risk of creating an imbalance in the distribution of powers between the two institutions that was envisaged by the authors of the Convention.

10. Of course, as the Court held for example in its judgment in Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) ([GC], no. 32772/02, § 67, ECHR 2009), it cannot be said that the powers assigned to the Committee of Ministers by Article 46 are being encroached on where the Court has to deal with relevant new information in the context of a fresh application, especially where the Committee of Ministers has ended its supervision of the execution of the Court ’ s judgment by means of a final resolution.

11. Nevertheless, it is clear that this is not the case here, which explains why we cannot subscribe to the final sentence of paragraph 63 of the judgment.